FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A COMPANY (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - A WORKER (REPRESENTED BY NORTHSIDE COMMUNITY LAW CENTRE) DIVISION : Chairman: Mr McGee Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Alleged constructive dismissal under Section 77 of the Employment Equality Act, 1998.
BACKGROUND:
2. The complainant was employed by the respondent company as a switchboard operator from 1985 until she resigned with effect from 12th December 2003. She claims that she was discriminated against by the respondent because she suffered from a disability (Obsessive Compulsive Disorder, referred to hereafter as OCD) and had no choice but to resign her position. She referred a case of constructive dismissal to the Labour Court on 7th April, 2004. The Court investigated the complaint on 5th October 2004.
DETERMINATION:
The complainant alleges that approximately 5 years ago she was diagnosed with OCD and was required to regularly attend a psychiatrist in the local Health Centre. She was prescribed medication for the condition. A feature of the disorder was that she suffered from doubt and anxiety and would constantly check and re-check any task she was required to complete.
The respondent was aware of her condition as she needed time off (which she took at her own expense) to attend psychiatric appointments. It is her view that the Company was aware at least 18 months – 2 years before her departure that she suffered from OCD. It had been discussed openly in the office.
In November 2003, she was advised by her manager that complaints had been received from customers that she talked too much on the phone to individual customers while other calls backed up and customers could not get through. Management declined to reveal the names of the customers lest the complainant should contact them. The complainant alleges that there were no previous complaints in 18 years, and all she was doing was assisting customers with queries. Nevertheless, the company decided to transfer her to another position within the office, entering data on a computer and to replace her on the switchboard. She objected to this, but at the end of November 2003 she was transferred to the new job (in an adjoining office).
She was also told she would have to keep her door open to allow the new person on the switchboard to ask her questions if necessary. As a result of this and the presence of other staff, who habitually kept a radio on in the office, the area was very noisy and she found it very difficult to concentrate, given her OCD. She would continually close the door only to have it opened again.
After some days of this, on returning from a day’s leave, she found the door wedged open permanently, using a franking machine. At this point, she complained to her manager, and advised her that she was not happy in her new job which she felt was being forced on her. No agreement was reached and the complainant felt she had no choice but to resign, giving one weeks notice.
On the day of her departure, she received e-mails and messages of support from customers, including one who said she was “a great ambassador for the company” and from a company Director and his wife. She also received the following reference:
- “-X- has been employed by this Company for approximately 18 years. During that time we have found her to be a person of the utmost honesty and integrity. She was extremely popular with her work colleagues and our customers. We wish to give her our sincere good wishes for the future and wish her every success in any future employment.”
The complainant contends that, due to the fact that she was transferred out of a position in which she had worked for 18 years (without any evidence being produced to support an allegation that complaints had been made against her) and due also to the refusal of management to accommodate her in her new position and failure to comply with her simple request to close the door of her office, she was left with no other option but to resign. The complainant contends, therefore, that she was constructively dismissed from her employment.
The complainant contends that she was discriminated against on grounds of her disability and particularly that the respondent failed to reasonably accommodate her needs in view of her disability in terms of Section 6 of the Employment Equality Act 1998, and contrary to Section 8 and Section 16(3) of the Act.
A consultant psychiatrist was to appear for the claimant, but was unable to do so owing to medical commitments. A report from another psychiatrist (dated 6th September 2004) who is the Consultant’s Registrar was submitted to the Court. The medical report centred on the psychiatric diagnosis – the symptoms of anxiety and compulsion.
This medical evidence was not challenged by the respondent and it was accepted that the complainant suffered from the condition complained of (OCD).
Respondent’s Case:
The company employs 24 staff, 12 of whom are based in the office.
The claimant joined the company in 1985 as a member of the office staff. Whilst working for the company she has been involved in a range of duties including handling paperwork for shipments, invoices credits, ordering stationary. She has also worked answering the phone as would the other staff - everybody would take a call when it came in.
Over time, she became more involved in taking phone calls as the work became more generally allocated in the office, with her eventually becoming the sole person who answered the phone when it rang. She originally worked in the general office but was moved into a side office because she did not like the smoke in the main office. She effectively now took all calls and did no clerical work, on the basis that she was busy on the telephones.
As the level of the company’s activities increased it became apparent, as a result of comments passed by customers and members of staff, that there were delays in the phone being answered. The claimant at this stage was the person responsible for the answering of calls.
Her Supervisor decided to make some calls into the office to assess the situation. When test calls were made, it was taking up to 45 seconds for a call to be picked up. This would be regarded as a long time for a phone to be answered when their customers had a number of other companies who they could use. This was further supported by the fact that when the claimant was on two weeks’ leave the difference in the answering of phones was very noticeable and this was commented upon.
The Supervisor spoke to the complainant about the delays and her explanation was that she was on to another customer. However, it became apparent that she was on the phone for long periods talking to customers and was allowing other calls to go unanswered. The Supervisor accepts that a number of customers liked to deal with the complainant but the trouble was that she was not managing the calls. She was asked to reduce the amount of time she spent talking to people and did agree to make the effort. She did and there was an improvement but then she would subsequently slip back to her old ways again.
Bearing in mind that the level of phone calls to the company was growing, and was anticipated to grow further, due to an advertising campaign embarked on, the company became concerned that as the telephone was its primary source of business, further problems could arise, existing customers would become annoyed and the company could miss new opportunities. Therefore it was decided that the covering of the phone should be shared with another member of staff. This meant that a new system would be put in place allowing the complainant and another person to pick up calls. In the case of the complainant three dedicated lines were to be allocated to her and a new handset was purchased.
Initially the company wanted the complainant to again work in the main office with the other members of staff. However, she wanted to remain on her own in a side office. Therefore it was decided that she could but that the door to her office would be left open to allow her to communicate with the other members of staff.
As the telephone work was to be shared, this meant that there would be a requirement to redistribute some of the clerical work so that both the complainant and the other person would be fully utilised. As the complainant had not been involved in clerical work for some time she was left to handle the paper work whilst waiting for the new lines to be installed to her desk.
The complainant was required to input data and check documentation. This would not have been work that was new to her but the company was happy to give her time to develop her speed in processing the work and they would have checked with her to see how she was getting on and to give her encouragement.
The complainant complained about the noise coming from the main office so the Supervisor offered to have the radio turned off or down and to ask the staff to keep their voices down if that would be a help. However, the complainant declined the offer. Her own office was quite noisy anyway as it overlooked the warehouse and there would be constant noise from the warehouse staff, drivers and the loading and unloading of lorries.
The complainant did ask that her office door be closed. However, as she was involved in more than just answering the phone, the company needed the door open so that she would be able to communicate with the rest of the staff and in particular the other person answering the telephone.
After a short period, however, the complainant indicated that she wanted to go back onto the phone exclusively. The Supervisor informed her that the company was going to continue with two people on the lines as it was working out much better than when the complainant was doing the job by herself.
On the 8th December the complainant asked for a word with the Supervisor. She told her she felt she was being discriminated against as the office manager had started to keep a record on a wall chart of when staff were off work. The Supervisor explained that this was so that everyone could see if time off had been booked. It referred to all staff and not just to her.
The complainant then requested a pay rise and also said that she did not want to work on the computer, and that she felt she was having a problem with her eyes because of the new work she was doing. The Supervisor suggested to her that she might need glasses.
Finally the complainant told her Supervisor that she did not want to do the job, she wanted a list of the complaints that had been received and she wanted the door closed otherwise she would resign. It was suggested to her that she think about it carefully before she did anything, as no one wanted her to leave. However, she was not interested in thinking about it. A number of people spoke to her to try and persuade her not to go but she was not interested. She met with the Managing Director the following morning and confirmed that she had handed in her notice. She then requested that she take her final day off as leave, that being the following Monday.
A number of people spoke to her on her final day. The Managing Director was away that day but he sent her an E-mail thanking her for all that she had done as did his wife who wanted to make sure that she was sure that what she was doing was right.
In relation to the specific matters complained of by the complainant, the respondents submitted the following responses.
Removal from Telephone Duties:
The primary reason why she was reassigned duties was due to the ongoing problems concerning the answering of phones. This problem was evidenced by the significant improvement in the answering of the phone when she was on leave and also by her own admission that she would try and improve and she did improve for short periods of time. At no time had there been any suggestion by her that the difficulties experienced had anything to do with OCD. It should be noted that whilst she was answering the telephone almost exclusively this came about because she had maintained that there was not enough time to do the clerical work as well. Thus she was never employed as a receptionist but as a member of the office team.
Request to do Clerical Work:
The complainant at no time maintained that she was unable to do the work because of a disability. She was clearly unhappy by the fact that she was not being left on the phones exclusively, but otherwise the Supervisor was there to support and help her in processing the paper work. This opportunity existed as Eircom had to connect up her dedicated external lines.
Noise Distraction:
The issue of noise was never raised by the complainant until there was a suggestion that she move back into the main office, and subsequently when she realised that the door of her office would not be closed. As already indicated the noise in her office was already substantial due to its location. In addition her Supervisor did offer to turn the radio down/off and also ask the staff to reduce their noise. When this was offered the complainant did not pursue the issue any further.
She had worked in the main office to cover for holidays and sick days and had not complained about the noise.
Disability:
It is assumed by the respondent that for an employer to able to respond to a disability it is essential that they are aware of the fact that there was a disability in existence and that there is a problem with work as a consequence. The Supervisor was aware that the complainant was attending counselling but the nature of the complaint or the reason for attending was not discussed. Certainly at no time whilst the complainant was carrying out her clerical duties did she ever indicate this was the reason why she was having a problem with her work.
Reasonable accommodation:
The respondent has acknowledged that where it is made aware of a disability there is an obligation to accommodate the person concerned so that they can do their job to a satisfactory level. In this case the company did not place undue pressure on the complainant to complete her duties. The company understands from the complainant’s submission and research, that the area of difficulty in a case of OCD is the need to constantly be re-checking tasks. The company’s conduct in this regard was in itself accommodating in that time was allowed for the complainant to become familiar with her duties.
In evidence, the Supervisor and the Managing Director confirmed their views on the matters set out above.
In rebuttal, the complainant made the following points:
(a) She applied and was interviewed for a position of switchboard operator/receptionist and this, alone, was her job for 18 years.(b) She was never advised that she was being tested on the switchboard therefore she had no way of challenging the company’s findings.
(c) When moved from the switchboard to the office, there was no sign of the promised “sharing” of the switchboard, nor was it possible to “share” the existing system.
(d) The complainant admits that she had covered entering data during previous holidays/sick leave periods, but not on an extended basis.
(e) The company was well aware, for at least 18 months, of her OCD, and had discussed it with her. Knowing this and its symptoms, they should surely have known that the job to which she was transferred was inimical to this condition.
(f) She did request a pay rise as she had not had one in two years and her pay (€272 per week) was very low. She was also being deducted for her time off to attend psychiatric appointments.
(g) The noise in her new office was different, diverse and louder than that to which she had become accustomed.
(h) Under Section 16 of the Employment Equality Act, 1998 there is an obligation on the respondent company to provide reasonable accommodation for a disability and, if necessary to provide special treatment or facilities. The respondent did neither to any extent that would satisfy the requirements of the Act. It did not consult her medical advisors. Its contention that it was not put onformalnotice of the disability and should have been so put, is not valid within the terms of the Act.
The complainant is claiming therefore that she was constructively dismissed (as defined in Section 2 of the 1998 Act) in circumstances amounting to discrimination on the grounds of disability by reason of the respondent’s failure to provide reasonable accommodation for the complainant, contrary to Section 16(3) of the Act. Accordingly, having been so discriminated against as per Section 8 and Section 16(3) of the Act, the complainant had no choice but to resign (as per Section 2 of the Act) and seeks redress under Section 77 of the 1998 Act.
In so doing, the complainant points to Court Determinations EDA025 (A Company v A Worker) of 17th December 2002 and EDA037 (A Health & Fitness Club v A Worker) of 18th February 2003.
Findings & Conclusions:
Facts:
Having carefully considering the evidence the Court finds the following facts:
1. The complainant worked totally or primarily for the respondent for 18 years with no complaints being made about her work.
2. The complainant suffered from OCD, which causes doubt, anxiety, compulsive rechecking and distraction for sufferers. This evidence was not challenged by the respondent.
3. The respondent was aware some time before November 2003 of the complainant’s medical condition.
4. The condition constitutes a disability under Section 16 of the Act.
5. The respondent informed the complainant of complaints about delays in answering calls.
6. She was transferred to another job against her wishes.
7. She was not allowed to keep the door closed in her new job, despite her wishes
8. She had not, by the time of her resignation, been given back any switchboard duties.
9. She resigned from her position, citing unhappiness with and inability to perform her new job and fearing the effect on her health, given her disability.
10. In transferring the complainant to different duties, no move was made, given her disability, to assess her needs and/or to do all that was reasonable to accommodate those needs, or to provide her with special treatment or facilities.
The Law Applicable:
Section 2(1) of the Act defines a dismissal as including
- “The termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without, or it was or would have been reasonable for the employee to do so…….”
In “A Health & Fitness Club v A Worker (EED037 of 18th February 2003), the Court found, in a similar case of disability that: -
- “However, in the instant case the respondent made no effort to obtain a prognosis of the complainant’s condition. They did not discuss the situation with her before taking a decision on her future. They came to the conclusion that she could not be retained because of her disability without the benefit of any form of professional advice or assessment of the risks associated with her condition.
- There were a number of courses of action open to the respondent. They could have had the situation assessed professionally and considered the most appropriate approach to adopt in consultation with the complainant and her medical advisor.”
- There were a number of courses of action open to the respondent. They could have had the situation assessed professionally and considered the most appropriate approach to adopt in consultation with the complainant and her medical advisor.”
Determination:
The Court finds that the complainant was dismissed on grounds of disability, (in breach of Section 2 of the 1998 Act) and determines that there should be an award of compensation, to incorporate both loss of earnings and the effects of discrimination.
The claimant’s salary was €14,200 p.a. Her loss of earnings is calculated at €4750 and the Court also awards a sum of €10,000 for the effects of discrimination. An order will be made directing the respondent to pay to the complainant compensation in the amount of €14,750.
Signed on behalf of the Labour Court
Raymond McGee
9th February, 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.