Complainant

Respondent

Anonymised Parties

An Employee

A Detention Facility

Representatives

Declan Harmon B.L. instructed by Margetson & Greene Solicitors

Lauren Tennyson B.L. instructed by Arthur Cox Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049517-001

05/04/2022

The complaint was lodged to the Workplace Relations Commission (WRC) on 5th April 2022 and relates to allegations of discrimination on the grounds of disability in relation to a promotion competition within the respondent organisation. The complaint also relates to an assertion that the respondent failed to provide reasonable accommodation to the complainant as a person with a disability and a further complaint of victimisation against the complainant.

Naming of the parties

I have decided to anonymise the parties to this complaint given the personal information relating to the complainant’s health and because of issues relating to the complainant’s son which arose during the hearing of the complaint.

Submissions

The complaints arise as a result of a promotion competition held in October/November 2021. The complainant’s application was not considered for the post. The complainant’s position is that he returned to work in June 2021 following a period of “cocooning” since the onset of the Covid 19 pandemic in March 2020. The basis for the cocooning was that the complainant was deemed to be immunocompromised due to a diagnosis of Stills disease in 2008 and the medical advice received by the complainant at the time was to self-isolate.

The complainant was deemed fit to return to work following an occupational health assessment in May 2021 “with some associated risk assessment guidelines” and the employer was obliged to ensure the complainant’s workspace “remains within these guidelines”. The complainant returned to work in June 2021.

The promotional opportunity arose in October 2021 and the complainant’s application was not accepted because the respondent’s view was that the complainant had been facilitated in a role that was provided to him as an accommodation in relation to his health in 2019. The complainant stated that the reassignment in September 2019 was not required due to his Stills disease as this ailment is managed with medication and exercise. The complainant’s position is that he was reassigned in September 2019 due to personal issues he was experiencing at that time in relation to his son’s health and an extremely serious assault that had taken place against him.

The complainant contends that he was excluded from the competition as he was previously deemed to be at risk in relation to being immunocompromised in March 2020 and the associated risks relating to Covid 19. However, the occupational assessment in May 2021 found that, within the health guidelines applicable at that time, the complainant was not considered to be in the “at risk” category. As a result, management’s decision to refuse his application for promotion in October 2021 was flawed based on the misconception that he was at risk in respect of Covid 19.

The complainant raised the matter in a grievance to the Director of Operations on 16th December 2021. The grievance outcome issued to the complainant on 21st January 2022. The findings of the grievance were that being in the “at-risk” category of covid 19 was misconstrued as the reason the application was not accepted. The stated outcome of the grievance was that the complainant’s current posting was facilitated because of a request by the complainant, due to Stills disease and his status as immunocompromised. The grievance outcome also stated that that the complainant did not provide an update in respect of his Stills disease diagnosis when requested and had also refused an interview conditional on an occupational health assessment being carried out in respect of his ability to carry out the Site Manager role.

In respect of the grievance outcome, the complainant’s position is that he was never given the opportunity to discuss his Stills disease in the context of progressing in the promotional competition and the employer did not give any consideration to how it could accommodate the complainant’s ability to carry out the role of Site manager.

In respect of the claim of victimisation, the complainant asserts that he was victimised by the respondent in the grievance outcome when it was asserted by the director of operations that the complainant had made “borderline defamatory” comments in his grievance. The complainant refutes that his grievance was anything other than a bona fides effort to address what had happened to him in respect of the promotion competition.

Counsel for the complainant concluded the submission by stating that the complainant has satisfied the burden of proof which he bears in accordance with Section 85A of the Employment Equality Act, 1998 and accordingly, the burden shifts to the respondent to rebut the allegations of discrimination.

Evidence and Cross examination

The complainant gave sworn evidence at the adjudication hearing. The complainant stated in evidence that he has 26 years’ service with the respondent. His current role is within the central hub where his role involves policing the 646 cameras that exist within the organisation. The role also involves coordination of keys and walkie talkies and distribution of same to staff employed by the respondent.

In respect of his disability, the complainant outlined that he was diagnosed with Stills disease in 2008. The complainant stated it is juvenile arthritis which presents mostly as swollen joints. The complainant stated that he manages the condition with one injection per week and takes regular exercise approximately three times a week.

In respect of the transfer of employment in 2019, this was facilitated due to unforeseen medical circumstances where the complainant’s son had been assaulted and set on fire and the transfer was facilitated to support the complainant at that time. The complainant stated that between 2008 and 2019, his Stills disease did not present any issues in relation to his work and while the respondent was on notice of the disability, it was not an issue in his day-to-day activities, and he was fit to carry out his duties without any additional accommodation.

As regards the promotion competition, the complainant stated that the difference in salary between his post and the Site Manager post was approximately €25k per annum. The complainant stated that at the time of the competition, he was at normal risk in respect of covid 19, yet his covid status was the reason he was not permitted to proceed to interview for the promotional post. The complainant stated in evidence that he did not receive any response to his application from HRand when the interviews were due to be held within two days, he contacted HR to be told he was not shortlisted on covid related grounds due to the job involving “mixing with the public”. The complainant stated that in respect of pursuing his application following an occupational health assessment that he was told that he could go for the interview but “wouldn’t get the job”.

The complainant stated he never refused to update the respondent is respect of his Stills disease and had sought to clarify the position from the May 2021 health assessment with HR and seek an up-to-date report prior to the interviews taking place but was unable to do so. The complainant stated that he never declined to attend the interview or a medical assessment but stated there was no point in attending for interview having previously been told he would be unsuccessful in his application.

The complainant concluded his evidence by stating that the respondent’s actions towards him were hurtful, disappointing and unprofessional and have had a significant effect on him both professionally and in his personal life. The witness stated that he now finds it extremely difficult going in to work every day.

In cross examination counsel for the respondent highlighted the complainant’s level of absence and the reasons for his transfer to the central hub, namely, for life reasons and because of his health-related issues. Counsel stated that the complainant was accommodated with a move to the central hub which was a role behind a glass window with a lot less human contact than the complainant’s previous role of training officer. Counsel also noted that the complainant, as an immunocompromised individual, was cocooning in line with government advice between March 2020 and June 2021. In respect of the promotion competition, counsel put it to the complainant that the medical assessments of May 2021 and November 2021 were silent on the issue of Stills disease and if the complainant wanted to progress in the competition, it was his responsibility to provide evidence to the respondent that this issue was resolved in respect of his ability to carry out the role. The complainant disagreed and stated that Stills disease did not present any barrier to him applying for the role and was not the reason for his transfer to the central hub in September 2019. The complainant reiterated his position that he was not shortlisted for the role because he was considered as being “at risk” in respect of covid 19.

Redress

The complainant is seeking compensation for the effects of discrimination and victimisation pursuant to Section 82(1)(c) of the Employment Equality Acts, 1998-2015. In addition, the complainant is seeking that an order be made in the following terms:

1)      That the Site Manager campaign be declared null and void,

2)      That a new recruitment campaign be run

3)      That the complainant be entitled to participate in that campaign

4)      That the respondent put in place all appropriate measures to enable the complainant to participate in the campaign and if he is successful in the campaign, to undertake the role.

Submissions

The respondent’s position is that the complainant was provided with reasonable accommodation in September 2019 when he was transferred to the central hub due to health issues. The respondent stated that the health issues in question relate to the complainants immunocompromised status because of Stills disease and his requirement to minimise his contact with others.

In October 2021, the complainant’s application for the post of Site manager was not progressed as he had not provided any update in relation to his Stills disease or his suitability to carry out the role of site manager given the role would require significantly more contact with people than hisrole in the central hub.

The respondent stated that the role of site manager cannot be diluted or modified to provide a non-contact role to the complainant as he requires due to being immunocompromised, however the respondent stated that the complainant was offered an interview for the role subject to an occupational health assessment being undertaken. The respondent stated that the complainant declined the offer of an interview pending an occupational health assessment, and his application did not progress.

The respondent’s position is that it assessed all the information available in relation to the complainant’s health, and as it had a duty of care to him, it did not progress his application due to the increased level of contact with others that the new role would involve and the risks to his health given that he was suffering from a life threatening illness which required him to change roles in September 2019. The respondent further contends that its actions in not progressing the complainant’s application was objectively justified on the basis of the previous accommodation when he was facilitated with a change in role in September 2019.

The respondent concluded its submissions by stating that the complainant has not satisfied the burden of proof that he bears in relation to establishing a prima facie case of discrimination. The respondent cited the cases of Southern Health Board v Mitchell [2001] DEE 011, Minaguchi v Wineport Lakeshore Restaurant DEC-E/2002/20 and Graham Anthony& Co Limited [2003] EDA038 in support of its position in that regard.

In addressing providing reasonable accommodation to the complainant, the respondent cited the cases of Humphreys v Westwood Club 2004 15 ELR 296 and Nano Nagle School v Marie Daly [2019] IESC 63 in support of its position that it had met in obligations in 2019 when it provided an alternative role to the complainant due to his health issues at that time. In respect of the promotion competition, the respondent’s position is that it would be contrary to the accommodation provided to the complainant in 2019 if it were to progress his application in circumstances where the role of site manager could not be changed to facilitate the complainant’s need for a role with minimal human contact.

Evidence and Cross examination                              

A Director of the respondent organsiation gave sworn evidence at the adjudication hearing. The witness stated in evidence that he was aware of the incident involving the complainant’s son in 2019, but it was his view that the complainant’s pre-existing illness was the reason for the transfer to the central hub. The witness stated that it was his understanding that exposure to other people could exacerbate the complainant’s condition.  The witness also stated that the transfer to the central hub was out of a duty of care to the complainant and was an accommodation for his diagnosed health condition. The witness also clarified that the complainant’s role within the hub has a lot less contact than the role of training officer or site manager given that the hub is a secure workspace with only two to three people present at any one time.

In respect of the promotion competition the witness stated that the reason the complainant was not shortlisted was not due to covid reasons and was in fact because of a pre-existing auto immune condition. The witness stated that there had been no update or clarification from the complainant in relation to his Stills disease at the time of his application for promotion. The witness concluded his evidence by noting the unfair and “borderline defamatory” comments made by the complainant in his grievance relating to his perception that the promotion competition was a “fait accompli” or merely “window dressing”. On this point the witness stated that there was no follow up to his grievance response letter of 22nd January 2022 and although these matters could have been resolved with the complainant there has been no further interaction in relation to the issue.

In cross examination counsel for the complainant sought clarification from the witness in respect of the medical evidence available in relation to the complainant. The witness confirmed that in July 2019 a medical report confirmed that the complainant was suffering from a life-threatening illness which met the criteria for critical illness protocols. Counsel also put it to the witness that the complainant was not at risk from covid as the occupational health assessment from May 2021 placed the complainant at “normal” risk which was re-affirmed in November 2021. The witness replied that “normal” in respect of the complainant was as accommodated in the central hub due to his health condition. Counsel further stated that in November 2021 the occupational health assessment did not address the complainant’s diagnosis of Stills disease. Counsel put it to the witness that if it was the Stills diseases that ruled the complainant out of the promotion competition, it was up to the respondent to clarify the position at that time.

The Applicable Law

Discrimination

Sections 6(1) and 6(2) of the Employment Eqaulity Acts 1998-2015 state as follows:

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

6(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) – (f) not relevant…..

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Burden of Proof

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Victimisation

Section 74(2) of the Employment Equality Acts, 1998-2015 states as follows:

74(2) 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.

Conclusions

I have considered the submissions and evidence of both parties to the complaint. The complainant was not permitted to advance in a promotion competition for the post of Site manager in October/November 2021. It was conveyed to the complainant that this was due to his at-risk status in respect of Covid 19. However, the complainant had an occupational health assessment in May 2021, and he was found to be at normal risk in respect of Covid 19.

The complainant raised a grievance on the issue and was informed in the grievance outcome letter in January 2022 that it was not his covid 19 status that prevented his progression in the promotion competition but rather his Stills diseases and his status as immunocompromised. The complainant was clear in his evidence that his Stills disease was managed and had not required any special accommodation since its diagnosis in 2008.

The respondent stated that the complainant’s Stills disease had necessitated a transfer to the central hub in 2019, but the complainant stated that this was for different reasons following a serious incident involving his son and had been agreed with a director of the respondent at the time. The complainant was also clear in his evidence that he had sought time to clarify matters in respect of his health and suitability prior to the interviews taking place so that he could progress in the competition but that this was not facilitated.

I note the initial correspondence from the respondent in relation to the reasons the complainant was not permitted to advance in the competition. In my view the reasons are clear and unambiguous and could not be misconstrued as suggested by the respondent. The respondent, in its grievance outcome letter in January 2022 suggests that it was the complainant’s status as immunocompromised as a result of Stills disease that was the reason he could not progress. On this point, I accept the complainant’s evidence in relation to his Still disease and the fact that no accommodations were necessary since the diagnosis in 2008. On that basis, I find that the respondent was incorrect to prevent the complainant from advancing in the competition for that reason and I accept the complainant’s sworn evidence in relation to the reason for his transfer to the central hub. The confusion around this issue could easily have been addressed with the complainant if the respondent had facilitated him with some time and clarified the position in respect of his covid 19 status from May 2021 as well as his suitability to carry out the role of Site Manager in the context of his Stills disease diagnosis.

In all of the circumstances of the complaint, I find that the respondent treated the complainant less favourably due to its incorrect assessment of his health in October 2021 when it incorrectly denied his progression in the promotion competition and then further compounded the less favourable treatment when it was suggested in January 2022 that the complainant’s status as immunocompromised was the reason for the non-progression in the competition.

In its correspondence in January 2022, it was the respondent’s stated understanding that the transfer in September 2019 was to facilitate the complainant’s health in respect of his Stills disease diagnosis. In my view this was a misunderstanding on the respondent’s part which was clarified by the complainant in his sworn evidence at the adjudication hearing.

Having considered the matter, I conclude that the respondent discriminated against the complainant as claimed in respect of his lack of progress in the promotion competition for the role of Site manager held in October/November 2021.

Redress sought

Given that almost four years have elapsed since the competition in question, I do not consider it appropriate to declare the competition null and void or to have the competition rerun as sought by the complainant. While the complainant was denied participation in the process, there is no guarantee he would have been successful at interview and in any event, it is my understanding that the roles in question were fixed term positions which ended in November 2023. Accordingly, I find that compensation is the appropriate remedy as well as a direction to the respondent in respect of the complainant’s future participation in promotional opportunities.

For the reasons stated above, I find that the complaint is well founded in part. The respondent is directed to pay the complainant €20,000.00 for the effects of discrimination. The respondent is further directed to carry out a risk assessment in respect of the complainant’s health and suitability in advance of any future promotional opportunities that may arise.

In respect of the complaint of victimisation, I find that the complainant has not shown that he was subject to adverse treatment having submitted his grievance in December 2021 and, on that basis, I find that this complaint is not well founded.

Discrimination, victimisation,