ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016282
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: 09/01/2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing 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 has been employed with the Respondent since 17th September 2007. He is paid €4730.00 gross per month and he works between 25 and 36 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company which was available on line. The Complainant referred a complaint to the Workplace Relations Commission on 13th August 2018 alleging he had been discriminated against on grounds of his Disability in relation to promotion, reasonable accommodation, harassing and victimisation. A further complaint in relation to his Conditions of Employment were withdrawn at the Hearing.
The Complainant was diagnosed with Parkinson’s Disease in 2012 and with depression in 2013.
Summary of Complainant’s Case:
The Complainant stated that he had been diagnosed with early-on-set Parkinson in 2012. He stated he had kept the Respondent up to date with diagnosis and progression and he has been attending the Respondents Occupational Health Department since 2013. The Complainant was diagnosed with depression in 2013 and he was on medication from June 2013 to August 2014.
However since summer 2015 he stated his working conditions have been made worse. While he has sought to have these issues resolved internally, he alleged the Respondent had failed to deal with the issue and find a solution.
Incident 1. He stated his workload increased and he informed his Manager that he could not deal with the increased workload. He stated that while his wife was in labour in hospital he was dealing with job emails. He stated that as he had to take his medication each morning he required to be accommodated with flexible working but this was refused. He had a meeting with the Respondent’s Employee Assistance Programme where he alleges he was informed he had to deal with his Manager himself. He was on sick leave and on his return he had a meeting with HR on 14th August 2015 and the Occupational Health Doctor on 24th August 2015. While HR were very supportive in relation to his work and he would be accommodated with coming in late in the morning but he stated the Doctors assessment case doubt on his stress levels. This complaint was investigated by the Respondent after he lodged a number of grievances in April 2018. He was provided with an outcome – provided. He disputed the outcome but did not appeal this under the procedures. He set out his reasons for not appealing and cited the delays of the Respondent in relation to his complaints.
Incident 2. A workstation assessment was carried out, a new chair was recommended and following a second work assessment in February 2017 it was only in May 2017 that he received the new recommended chair but not the recommended monitor until 2 years later. This was investigated by the Company involving a number of complaints lodged in April 2018 and an outcome issued which found that his grievance was partially substantiated in relation to the monitor and the outcome recommended that he receive a work station assessment every 6 months.
Incident 3. This issue concerned his move back to a named Team in March 2016. He stated that he had a meeting with the Manager of this Team three months before his transfer where he alleged comments were made to him but finally the arrangements agreed with HR were implemented.
This was also investigated as part of his series of complaints of April 2018. The outcome was issued but the Investigator stated they had difficulty in establishing what actually occurred between the Complainant and the named Manager who denied using the alleged words. This incident is alleged to have taken place some two years previous.
Incident 4. This complaint relates to the Two Consultant Level 1 positions advertised in summer2016. He stated he had applied for the positions advertised prior to the PCI Collective Agreement coming into force and at that time he was Band 4. The Interviews were delayed due to the Collective Agreement where he was informed that he was being banded at Band 5. He was interviewed for the positions. He was informed he was not successful. He stated that two of the successful candidates did not have the required qualifications. This complaint was investigated after he lodged a number of complaints in April 2018. It was investigated. He disputed the outcome of the investigation and stated that he did have the desired qualifications while the successful candidates did not.
Incident 5. This complaint relates to an incident on site on 3rd March 2017 where he alleged that other employees had made mistakes on site which he had to rectify and that one of the employees had got the promotion ahead of him. He complained to his Manager and following this he took his own projects, started coming in early and worked like other members of the team. This complaint was investigated as part of a number of complaints lodged on 28th April 2018. The complaint was investigated. His complaint was not unsubstantiated as it was his role to assist junior employees, it was his choice to drive each day rather than stay locally in a hotel. He was paid his expenses. The Complainant was not satisfied with the outcome. He did not appeal.
Incident 6. 29th January 2018. His work phone had become faulty and he requested a new one which was approved and he forwarded this on to facilities. He was informed there was a delay and he did not get his phone until 30th April 2018. He lodged a complaint as part of a number of complaints on 28th April 2018. It was investigated and his complaint was not upheld. The Complainant was not satisfied with the outcome but did not appeal.
Incident 7. 20th March 2018. He returned to work after two weeks sick leave on 20th March 2018. He had a meeting with his Team Leader in relation to the email with medical certificate submitted by him. He alleged that his Manager asked questions concerning his condition which he objected to. He lodged a complaint on 28th April 2018. This was investigated but his complaint was not substantiated as it is the Line Manager’s responsibility as part of the Group Attendance Policy to have a return to work meeting with the employee. He did not appeal the outcome.
The Complainant stated that he did seek the assistance of his Union. There were two meetings and numerous emails but he decided to refer his complaint to the WRC.
The Complainant stated that on 3rd April 2018 he verbally sought a meeting which did not take place until 26th April 2018. At this meeting which was informal and attended by HR, his Team Leader and Senior Manager, he outlined his complaints with the exception of Incident 5. The HR and Managers agreed to provide the mobile phone and monitor and these were provided on 30th April 2018.
The Complainant received an email on 11th May 2018 after his return to work from sick leave and two weeks after the meeting of 26th April 2018 from the Senior Manager asking him to attend the Occupational Health Service. He stated that he felt he was being punished and harassed for making complaints at the meeting of 26th April 2018. It was clear the referral was made as a result of the meeting not because of the sick leave certificates. He also stated that he had not received any response to the complaints he had raised. He did attend the OHS on 5th June 2018.
He had a formal Grievance meeting with the Respondent on 29th June 2018 as the Respondent refused to meet with him while he was on sick leave.
The Complainant referred complaints to the WRC. He set out the Impact on him arising from these complaints.
Summary of Respondent’s Case:
The Complainant has been employed as an Electrical Engineer with the Respondent since 2007. He has always been a diligent employee and the Respondent was extremely sympathetic when the Complainant was diagnosed with Parkinsons Disease in 2012. The Complainant alleges he began experiencing difficulties at work in the summer of 2015 and he has set out seven incidents of alleged discrimination and one incident of alleged victimisation. Many of these incidents were raised by the Complainant when he lodged a complaint with the Respondent in May 2018 under the Respondent’s Grievance Procedure. These were investigated as per the Procedures and the outcome was provided to the Hearing.
Incident 1. He alleges that his workload increased in summer 2015 when he was assigned to the Respondent’s (named) Team. While it is accepted that the numbers on this team decreased at this time, this was because of a reduction in it’s workload. The Respondent stated it does not accept that the Complainant was required to work significant hours at this time and that he was under no obligation to work during his statutory Parental or other leave. The Respondent denies that the Complainant was instructed by his named Line Manager to take his medication early each day. This Line Manager had numerous discussions with the Complainant about any reasonable accommodation the Complainant might require and also that he did not have to adhere to strict start and finish times while working on this team. The Respondent stated they could make no comment in relation to what the Complainant has stated in relation to the Employee Assistance Programme Officer as these are totally confidential between the Parties. Likewise the Respondent referenced the medical rep[ort from the Occupational Health Doctor, provided to the Hearing, and they refuted the Doctor was biased against the Complainant.
Incident 2. Workstation Assessments were conducted in November 2015 and February 2017. The 2015 assessment recommended the Complainant be furnished with a new chair. The Complainant was furnished with the name of the supplier. He visited the store but he stated the chairs were too expensive and he sent the Respondent details of a chair advertised on a website. It was explained to the Complainant that only chairs from approved suppliers could be purchased. This was discussed at the Grievance investigation.
Incident 3. The Complainant’s assignment to the named team was due to complete in March 2016 and while the Manager of this Team would have been happy to retain the Complainant on this team, the Complainant opted to return to another named team and this was facilitated. Well in advance of his transfer there were discussions with the Complainant about the role he would have and if there were any requirements he had arising from his disability..
Incident 4. The Complainant submits there were positions advertised in Summer 2016 and he applied. He has submitted these were Band 5 positions and at the time of his application he was a Band 4. The Respondent provided a copy of the Advertisements and these clearly show the positions were Consultant Level 1 (CL1). They make no reference to Bands. The Respondent provided background. The Respondent undertook a review of its pay and reward structure in 2015/2016. This resulted in a Collective Agreement being reached with the named Group of Unions. As part of this agreement all roles below the level of senior manager were mapped to one of seven bands. While his role was initially mapped at Band 4, it was finalised at Band 5. The positions advertised in the summer of 2016 were CL1 positions. There was a selection process, the Complainant was interviewed but was not successful. The Respondent denied that his disability was in any way relevant in the selection process.
Incident 5. The Respondent stated that the named employee who allegedly made the comment complained of was investigated during the Grievance process – outcome provided to the Hearing. The Respondent also provided emails from this named employee to the Complainant’s Occupational Health Department seeking clarity in relation to the Complainant commencing work at 7.30 each day.
Incident 6. The Respondent stated that while they regretted the delay in furnishing a work mobile phone to the Complainant this delay was caused by the Supplier and a number of employees were affected.
Incident 7. The Respondent has an Attendance Policy which requires a Manager to have a return to work discussion with an employee following a period of sick leave. The Manager sought to have this meeting on 20th March 2018. The purpose was to support the Complainant and seek to clarify any supports the Complainant might have on his return to work.
Victimisation. The Complainant alleges that he was victimised in respect of a referral to the Respondent’s Occupational Health Department in May 2018. The Complainant has stated that he was punished and harassed for making complaints as this occurred after a meeting to discuss his internal grievance. The Complainant did return to work in April 2018. He subsequently had other sick absences and as his sick absences had exceeded 15 days in a 12 month period his Line Manager did refer him to the Occupational Health Department. This was in fact activated by the Occupational Health Department on 10th May 2018 requesting that a referral be made. Evidence provided.
The Respondent argued that they have at all times sought to support the Complainant with revised start times and have been flexible in relation to the work the Complainant has taken on. Relevant emails provided to the Hearing. In this context the Respondent has also far exceeded its own policy in relation to paid sick leave. Its sick leave policy provides that an employee is entitled to 13 (65 days) weeks at full pay and 13 weeks (65 days) at half pay over a 4 year rolling period. In the last four years, the Complainant has had 237 sick leave days and all have been fully paid by the Respondent.
The Respondent argued that the Burden of Proof as per Section 85 A rests with the Complainant and they argued that the Complainant has not adduced facts from which any inference of discrimination can be drawn. Likewise in relation to the complaint of victimisation the Complainant has failed to submit any evidence to support this complaint.
Findings and Conclusions:
On the basis of the evidence, substantial written submissions opened at the Hearing, a significant number of appendices which I have read in detail and questioning by the Adjudication Officer at the Hearing I find as follows -.
The Respondent operates a Grievance Procedure which is a Collective Agreement between the Respondent and the Group of Unions.
Both Parties confirmed at the Hearing that the Complainant had lodged his formal complaint with the Respondent on 26th April 2018. There was a formal grievance meeting held on 29th June 2018 during which the Complainant outlined his complaints in relation to seven different incidents that took place sometime, date unspecified, in the summer of 2015 and the final complaint, incident number seven, took place on 20th March 2018. All seven complaints were investigated by the Respondent and a formal outcome was sent to the Complainant dated 19th July 2018.
Incident 1. This complaint was unsubstantiated as the investigator found that it was part of the Respondent’s Attendance Policy that the Line Manager should always meet an employee on return from sick leave. I was provided with this Policy and this is clearly set out at Section 3 of the Policy.
Incident 2. This complaint was unsubstantiated in relation to the new chair. The Respondent had identified a chair with their supplier, the Complainant recommended one from a website which the Respondent explained they would not sanction as any goods bought have to be sourced from an identified supplier. The Complainant was eventually provided with a new chair.
Incident 3. This complaint did not require any further action as it was the responsibility of the Complainant to assist junior members of the team to ensure that the product is in line with the standards at the time. The Complainant had also raised the promotional outcomes from the interviews of summer 2016 where he was offered advice in relation to promotional opportunities.
Incident 4. No action was required as his grievance was unsubstantiated. The requirements for the two Consultant Positions advertised were that the qualifications mentioned were desirable but not required. The Complainant had taken part in the interview process but was not successful and other candidates had scored higher.
Incident 5. This grievance was unsubstantiated. This complaint related to a meeting the Complainant had with his Manager during which the Complainant outlined some of the difficulties he had on recovering from depression and dealing with Parkinsons. The Respondent concluded there was a difficulty in dealing with an allegation of a comment made by the Line Manager which was disputed.
Incident 6. This relates to the Complainant’s request for a new mobile phone which he requested on 29th May 2017 but was not provided with it until 30th April 2018. The complaint was considered by the Respondent which found the complaint unsubstantiated as a number of phones had been ordered. There was a delay in the order but the Complainant was not singled out by the Respondent in relation to the provision of a new mobile phone.
Incident 7. This relates to an incident on 20th March 2018 when the Complainant returned to work after being absent on sick leave. He was called to a meeting with his team leader who questioned him concerning his illness. The Respondent Attendance Policy requires the Line Manager to have a return to work meeting with all employees who return to work after an absence on sick leave. The complaint was not substantiated. The Complainant did not appeal the outcome.
There was no dispute between the Parties but that the Complainant did have a Disability. The Complainant lodged his complaints in relation to (1) reasonable accommodation (2) Promotion (3) Victimisation (4) Harassing. The complaint in relation to discrimination in Conditions of Employment was withdrawn at the Hearing.
Section 8 of the Act provides as follows – Discrimination by Employers etc (1) in relation to (a) access to employment (b) conditions of employment (c) training or experience for or in relation to employment (d) promotion or re-grading, or classification of posts, an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
This relates to the Summer of 2015 when the Complainant alleges that as a result of projects and other employees leaving his workload increased. He stated he informed his Line Manager that he could not deal with the additional workload. He stated that while his wife was in labour in Hospital he was answering work emails. The Complainant provided evidence of a medical certificate dated 7th July 2015 to cover sick leave from 7th to 27th July 2015 due to stress. I note that when the Respondent received this medical certificate the Occupational Health Department sent an email to the Respondent (named) alerting them to the medical certificate which was classified as a reportable illness. I note the report from the Medical Officer (named) dated 25th August 2015 in which it is recorded that the Complainant did raise his workload but this states that the Complainant had discussed this with local management and more recently with Human Resources and that the Complainant felt confident that an appropriate response would be forthcoming. The Complainant was accommodated by a transfer to another Team.
I note the email from a named Manager dated 27th August 2015 which states as follows – That’s great thanks, I also have the review from (named) so will be sitting down with (3 named Managers) to ensure you are not given any other work other than your own – you are accommodated in the morning if and when necessary – you are accommodated in relation to all hospital/Doctor appointments. I will put something in the diary to meet up again in few weeks and in the meantime if you need to speak to me just give me a shout.
Reasonable accommodation is encompassed by Section 16 of the Act. Section 16(3) of the Act provides as follows – For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking any duties if the person would be so fully competent and capable on reasonable accommodation. This issue was fully considered by the Irish Courts in the Nano Nagle School v Daly case.
Section 85A (1) of the Act in relation to the Burden of Proof provides as follows – 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.
I find that the Complainant has not met the Burden of Proof in relation to the complaint of reasonable accommodation. The evidence was that he was accommodated by the Respondent in relation to his workload, his start times, new jobs where the Complainant agreed to take these on, There were a considerable number of emails provided by the Respondent dating from August 2015 right up to 23rd April 23rd April 2018 covering a number of issues raised by the Complainant. The Complainant was also provided with a copy of all these emails between the Parties.
This relates to Consultant Level 1 posts advertised in Summer 2016. The Complainant was classified as Band 5 which is equivalent to Consultant Level 1 position. The evidence was the Complainant applied for the positions, he was interviewed but was not successful. He alleged the two successful candidates did not have the required qualifications for the positions which he did. I note the Advertisement for the Positions states – Desirable Qualifications not required qualifications. I note that even if the Complainant had been successful this would not have meant a financial reward as he had been classified as a Band 5 as part of a Collective Agreement on Pay Restructuring in 2016.
I find that the Respondent has not discriminated against the Complainant in relation to the two positions advertised on 23rd June 2016.
Section 74(2) of the Act provides as follows – 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 € 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 or any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned.
This relates to Incident 7 of 20th March 2018 when the Complainant returned to work after being absent for two weeks. He was called to a meeting with the Team Leader where he alleged he was questioned about his illness despite the fact that the Complainant had emailed him the medical certificate. He stated that he had received an email dated 11th May 2018 some 6 weeks after his return from sick leave and two weeks after his meeting on 26th April 2018 with senior management in relation to his complaints, he was requested to attend the Company Doctor. This he felt was to punish and harass him for making the complaints at the meeting on 26th April 2018. This reference was initiated some two weeks after his meeting with Management rather than immediately on his return from sick leave.
He also stated that he had to work under the same Manager he had made the complaints against until October 2018.
The Complainant met HR on 26th April 2018 where he outlined verbally his complaints with the exception of one incident. He had a further meeting with his Manager in relation to this incident on 1st May 2018. The Complainant issued ES1 Form on the Respondent on 16th May 2018 and he lodged a formal complaint with the Company under the procedures on 25th May 2018. His complaint was acknowledged on 5th June 2018 but there was no engagement as the Complainant was on sick leave. A meeting was held on 29th June 2018.
I note the emails of both the 8th and 10th May 2018 and the referral to the Company Doctor. It is clear that this referral arose as a result of his absences on sick leave over March and April 2018. I have also reviewed the Occupational Health Policy of the Respondent and I do not find in favour of the Complainant in relation to his complaint of victimisation.
The Complainant made no specific complaint under this Heading except to refer to it in his complaint of Victimisation where he states - I was being punished and harassed for making complaints. I find the Complainant has not provided any evidence to show he was harassed as provided for in Section 14 of the Act. I find this complaint is not well founded.
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.
On the basis of the evidence, my findings above and in accordance with Section 79 of the Act I declare these complaints are not well founded.
Dated: March 25th 2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Discrimination on grounds of Disability – Victimisation – Complaints not well founded.