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In a recent Equality Decision Tribunal case DEC E2012-160 (A Complainant v A Third Level Institution) the Complainant contended that she was discriminated against by the Respondent on the grounds of gender, family status and disability contrary to sections 6(2)(a), 6(2)(c) and 6(2)(g) of the Employment Equality Acts 1998 to 2008 (“the Acts”) in relation to (a) promotion/re-grading (b) training and (c) dismissal. The Complainant contended the Respondent did not provide her with reasonable accommodation, that she was not paid equal remuneration (on the disability ground) and that she was harassed by the Respondent.

The Equality Tribunal awarded her €45,000.

Background

Complainant’s Case

The Complainant stated that she suffered from a mental illness which, at the time in question, was understood to be post-natal depression. She further stated that she initially commenced employment in a part time role and became full time when she moved to the Department of Sport. She further contended that her salary was raised to the 9th point of the relevant scale upon her move but she did not receive a further increment but that a colleague on the same grade as her did.

The Complainant gave evidence that she got on well with everyone in the office at first, but she suffered a deterioration of her mental health, which was caused by the general atmosphere that developed in the office. Prior to going on maternity leave in March 2008, the Complainant stated that a colleague raised the matter of sick leave with her and made a number of suggestions including that she take medical appointments as sick leave. She also referred to a comment that a colleague made while she was in a lift with her and stated that this comment, which was something about her having to “sink or swim”, was related to her disability. The Complainant referred to a number of other incidents and when she returned to work after these events which made her feel intimidated, anxious and “ganged up on”.

Upon returning from maternity leave in April 2009, the Complainant noticed a change in her colleagues approach towards her. The Complainant stated that she was anxious to wipe the slate clean and wrote to the Respondent’s Staff Relations Manager to confirm that the issues that arose before she went on maternity leave were not being proceeded with. She was subsequently called to a meeting the next day and told she was being made redundant and she would not have to work out her notice period.  The complainant stated that her selection for redundancy was discriminatory and she was targeted for it.

In summary, the Complainant stated that she was treated less favourably than other employees and the inference as to why must be that it related to her disability and the perception that she was a problem as a result of it and was someone to be excluded and ostracised.

Respondent’s case

The Respondent accepted that the Complainant’s increment was increased only once between October 2006 and March 2008 but this was to Point 9 when she commenced her first fixed-term contract in March 2007. The Respondent stated that the move to Point 10 is not automatic.

With respect to the claim of Equal Pay, the Respondent stated that there is no written incremental policy and that the remainder of the case related to a series of one-off incidents and two separate remarks by the Complainant’s colleague.  The Respondent accepted the atmosphere was strained but denied that there was any harassment and/or victimisation of the complainant in that context.

The Respondent stated it was not extraordinary for it not to have a redundancy policy. It said that it is not common practice in the education sector or anywhere else to have such policies. It rejected the suggestion that the policy in this respect was made up to catch the Complainant. It said it was carried out as it was essential to cut costs and was not manufactured in any way.

Conclusions of the Equality Officer

The Equality Officer noted that the issues to be decided were

(i) whether the Respondent failed to pay the Complainant equal remuneration with her colleague on the grounds of family status and/or disability;

(ii) whether the Complainant was subjected to less favourable treatment in comparison to (an)other person(s) on the impugned grounds of gender, family status and/or disability with respect to training and/or promotion/re-grading;

(iii) whether she was harassed by the respondent on the grounds of her disability;

(iv) whether she was victimised by the Respondent with respect to her treatment by it after she made her complaint to the Tribunal and/or with respect to her dismissal.

Equal Pay

The Equality Officer noted that there was insufficient evidence to show that the reason for refusing the Complainant an increment in October 2007 was related to her disability and/or her family status. The Complainant also complained that she was not provided with extra remuneration for the additional work that she was required to do while a colleague was on maternity leave. He  The Equality Officer ruled that it was merely coincidental that the Complainant and her colleague were on different rates of pay at the time in question.

Training

The Equality Officer was not satisfied that anyone else in the Respondent’s organisation was provided with training which the Complainant did not receive.

Promotion and Re-Grading

The Equality Officer noted that no evidence was presented to the Tribunal that the Complainant was discriminated against with respect to promotion and/or re-grading.

Reasonable Accommodation

The Equality Officer noted that it was clear the Complainant was fully competent and capable of undertaking her duties without the need for the taking of appropriate measures by the Respondent and that there was no evidence that her disability made it any more difficult for her to deal with that workload.

Harassment Prior to Claim to Tribunal

The Equality Officer noted that the issue that caused the most distress to the Complainant prior to her going on maternity leave was the request for a meeting with her colleagues to discuss the issues arising with respect to her sick certificates. He further noted that in harassment cases generally, the first question to be answered is a subjective one: did the Complainant genuinely consider that they were being harassed? In all the circumstances of the present case, her noted the answer was yes. However he further noted that the key question was whether that harassment was related to her disability.

The Tribunal concluded that the Respondent treated the Complainant in a hostile and intimidating manner and that the Complainant’s disability was more than a trivial influence in that treatment.

In relation to whether the Complainant was harassed with respect to her disability, he noted that the Acts provide in Section 14A that “it is a defence for the employer to prove that (it) took such steps as are reasonably practicable…to prevent the person from harassing or sexually harassing the victim..” The Equality Officer was satisfied that the Respondent had a harassment policy which, in all the circumstances of the present complaint, was adequate enough to provide the Complainant with recourse to make a harassment complaint and to meet the requirements of Section 14A in that respect. He rules that the Respondent was entitled to rely on the defence available in Section 14A.

Victimisation/Harassment

The Equality Officer referred to the case of Tom Barrett v Department of Defence where the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Acts to be made out. It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

In short, the Equality Officer noted that the management view of the Complainant became appreciably more hostile towards her after she made her complainant to the Tribunal. He did not accept that the Respondent’s standard practice was that in choosing a person to be made redundant, the determining factor is seniority within the department concerned rather than the organisation as a whole. He concluded that he was satisfied that the Complainant’s dismissal by the Respondent was a reaction to the taking of a protected act by her and the Respondent provided no rebuttal to this claim.

Decision

  • The Complainant failed to establish a prima facie case that the Respondent discriminated against her on the gender, family status and/or disability grounds pursuant to section 6(2)(a), 6(2)(c) and 6(2)(g) of the Acts in terms of training and/or promotion/regrading contrary to s.8(6)(c) and 8(6)(d) of the Acts.
  • The Complainant failed to establish a prima facie case that the Respondent failed to provide her with equal remuneration on the family status and/or disability ground pursuant to section 6(2)(c) and 6(2)(g) of the Acts and contrary to s.29 of the Acts.
  • The Complainant has established a prima facie case that the Respondent harassed her on the disability ground pursuant to section 6(2)(g) of the Acts in terms of training and contrary to s.14A of the Acts, but the Respondent has successfully rebutted this prima facie case, in the context of Section 14A(2) of the Acts.
  • The Respondent victimised the Complainant in terms of section 74(2) of the Acts, in terms of her treatment by it and in terms of her dismissal by it.

The Equality Officer ordered the Respondent to pay to the Complainant the sum of €45,000 in respect of the victimisation.

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