Case Number: DEC-E2012-032- Full Case Report. Equality Tribunal

• Court: Equality Tribunal
• Date: 01 March 2012
• Docket Number: DEC-E2012-032- Full Case Report

The Equality Tribunal

Employment Equality Acts 2000 to 2011

EQUALITY OFFICER'S DECISION
NO: DEC-E2012-032

Parties

An Employee

V

A Government Department
(Represented by Ms. Cathy McGuire BL on the instructions of the Chief State Solicitor's Office)

File No. EE/2010/505 Date of Issue: 20 March 2012

Keywords:
Employment Equality Acts - Discriminatory treatment -promotion/re-grading - Victimisation - Disability - Prima Facie Case

1. Dispute and delegation

1.1 This dispute concerns a claim by An Employee (hereafter "the complainant") that he was subjected to discriminatory treatment and victimisation by a Public Sector Employer (hereafter "the respondent") on the ground of his disability. The complainant claimed that he had been subject to less favourable treatment by an employer that has failed or neglected to promote him on 21 April 2010. This failure to promote him has been on-going. Furthermore, the complainant maintained that after he lodged his complaint with the Equality Tribunal the respondent has commenced disciplinary action against the complainant. The complainant has been suspended with pay since 29 August 2011.

1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 July 2010 under the Employment Equality Acts. On 30 September 2011 in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Tara Coogan- an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by section 79(1) and as part of my investigation, I proceeded to hearing on 30 January 2012. Final information, requested by me at the hearing, was received on 8 February 2012.

1.3. A hearing scheduled for an earlier date had been adjourned to grant the respondent additional time to complete its submission. The decision has been redacted to protect the privacy of the complainant.

2. Case for the complainant

2.1. The complainant has been employed in the public sector since 1974. He submitted that he has been subjected to on-going discrimination by the respondent who has overtly prevented him from being promoted. The reason for this refusal to promote him is because the complainant is a person with a disability. The complainant has acquired the required seniority and has received satisfactory grading in his personal performance review. The promotion, that the complainant submitted that he is entitled to, has been continuously been blocked by his managers and personnel who refuse to recognise the complainant's contribution in the workplace.

2.2. The complainant has been diagnosed with Bi-Polar Affective Disorder in 1972. The complainant described his condition as being stable. He sees a psychiatrist and is on medication. He submitted that the current suspension from his job had had a negative effect on his mental health but that he is back to normal again. A Consultant Psychiatrist report from 15 November 2010 confirms that the complainant mental health condition has remained stable since 2008. The complainant submitted that his doctor had deemed him fit for work.

2.3. The complainant also submitted that had type 1 Diabetes Mellitus and recently has also been diagnosed with obstructive sleep apnea.

2.4. The complainant submitted that the civil service is a joke. He has been working at his grade for 37 years and has not been promoted. The complainant has reached the required standard for promotion. It is his case that but for the discrimination arising from personnel having a black mark on him because of his disability, he would have been promoted to a management role.

2.5. The complainant accepted that other people with disabilities have been promoted in the respondent department. He submitted that those individuals were 'doormats' unlike the complainant. The complainant was 'no Stepford wife' like some people employed by the respondent. Instead he is a born leader who does not keep his head down.

2.6. The complainant submitted that his managers have sent false work reports to personnel. Managers have continuously lied about his character and his work performance. This means that there is a serious question mark over the integrity of the respondent's personnel department and the various 'cowboy' Secretary Generals in the past 25 years. The complainant maintained that his managers were using a common last resort or ruse to block a person's promotion by claiming that he lacked the appropriate skills. He has tried in vain to find out from various personnel officers what these alleged lacking 'skills' are but despite numerous queries over the last sixteen years the complainant has received no satisfactory reply. The complainant claims that this ambiguity means that the managers and the personnel department are engaged in lies and deception.

2.7. The complainant maintained that there is a culture of 'protectionist cronyism' with the respondent. Furthermore, senior managers in his department are mainly sleeping at their desks/offices doing nothing and that he had been picked on for pointing out this and other management failures. He stated that after so many years with the respondent he could do any job going in the department. The complainant believes that the respondent has a grudge against him because he has had the courage to criticise people in positions of authority who believe that they are beyond reproach.

2.8. In relation to the question of the complainant's conduct in the workplace and suitability for promotion. He submitted that the respondent had organised a number of meetings with the complainant that were rather petty in nature. These meetings related to the complainant's alleged conduct in the workplace and concerned minor issues such as napping, inappropriate behaviour towards female co-workers, inappropriate dress, etc. The complainant submitted that he did not believe that these matters really did warrant such meetings and that the respondent was only doing so because it wanted to restrict him as he was not a 'faceless bureaucrat' and because the respondent was obsessed with 'silly, mean-minded rules'. For example, the complainant's managers had lied about him singing out loud in the workplace. The complainant denied this and submitted that everybody sings to themselves now and then and that he is no exception. The complainant submitted that his manager is, inter alia, useless and unable to handle his staff fairly. Dustin the Turkey would do a better job of managing the complainant. It is the complainant's case that most of the respondent's managers are similarly ineffectual.

2.9. The complainant submitted that he was in top form in relation to his disability and did not believe that his disability meant that he needed special facilities or treatment. It is his position that after serving so many years with the respondent he is entitled to a promotion. The complainant stated that he considered that he was quite often doing other people's work also.

2.10. The complainant accepted that he sometimes took a short nap at his desk particularly after a heavy lunch. He suggested that this drowsiness could be linked with his diabetes and/or to his medication. The complainant submitted that other people also routinely napped at their desks.

2.11. The complainant submitted that he was suspended on 29 August 2011 because he had tapped a female colleague on the shoulder. He also conceded that other 'minor' incidents involving female colleagues had been discussed. The complainant stated that he had apologised to a few people when required but pointed out that no complaint had been made against him. Also, his manager had told personnel complete lies about the complainant indecently exposing himself to the manager. Such an interpretation of what had actually happened was a complete fabrication by the manager who 'despised the complainant's guts'.

2.12. The complainant submitted that the alleged indecent exposure incident occurred on 25 August 2011. He had spent the previous night in hospital. The complainant had been working alone in his section in the afternoon. As he had been removed from phone duty due to alleged inappropriate conduct the complainant became irritated by '5 phones hopping'. He rang his manager to ask him to answer the phones and when the manager refused, the complainant had a disagreement with his manager. The first part of the exchange took place in the manager's office and later, after the manager had followed the complainant to the complainant's section, the complainant's trousers accidently fell down while he was leaning over to correct a blind. This mishap resulted in a completely accidental exposure of the complainant's bare buttocks. The complainant submitted that he had forgotten to wear underpants that day due to his stay in hospital. The complainant denied that he made any disparaging remarks...