FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : AN EMPLOYER (REPRESENTED BY MICHAEL MCINERNEY & CO SOLICITORS) - AND - A WORKER (MR O) (REPRESENTED BY O'MARA GERAGHTY MCCOURT SOLICITORS) (NUMBER 1) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 - DEC-E-2003/052
BACKGROUND:
2. A Labour Court hearing took place on the 26th of October, 2004. The following is the Court's determination:
DETERMINATION:
Mr O (the complainant) claims that he was discriminated against on grounds of disability by his former employer, (the respondent). The complainant was employed by the respondent in a specialist occupation. On or about April, 2002, he was admitted to hospital suffering from a psychiatric illness. The complainant was discharged from hospital in June, 2002, and was advised by his psychiatrist that he could return to work, preferably on a phased basis. The respondent did not allow the complainant to return to work. The complainant was referred to a psychiatrist nominated by the respondent and later to an occupational physician. He was eventually allowed to return to work on 9th October, 2002.
The complainant contends that the respondent’s failure to allow him to return to work on a phased basis constituted a failure to accommodate his needs by providing special treatment or facilities, as required by Section 16(3)(b) of the Employment Equality Act, 1998 (The Act).
The complaint was referred to the Equality Tribunal pursuant to Section 77 of the Act and was investigation by an Equality Officer who found that the respondent did discriminate against the complainant in the manner alleged. She awarded the complainant compensation in the amount of €8,000. The complainant also alleged that he had been harassed by the respondent, contrary to Section 32 of the Act, and that he had been victimised within the meaning of Section 74(2) of the Act when the respondent ceased paying him sick pay and making VHI contributions on his behalf. The Equality Officer found against the complainant on these issues.
The respondent appealed against so much of the Equality Officer’s decision as found it liable for discrimination against the complainant on the disability ground. There was no cross appeal by the complainant. Accordingly, the only matter for determination by this Court is whether the complainant was discriminated against in the manner in which he was treated by the respondent, in respect of his return to work, following his discharge from hospital.
The complainant also brought a claim alleging that he had been constructively dismissed by the respondent on grounds of his disability. Since the claim heard by the Equality Officer and the dismissal claim being heard at first instance by the Court are grounded on interrelated facts the Court, with the consent of the parties, determined to hear both cases together. However, since they constitute separate referrals, and are subject to separate avenues of appeal, the Court decided to issue separate Determinations in each case. For the sake of completeness, all of the evidence and submissions relative to both issues are summarised in this Determination.
This Determination relates to the respondent's appeal of the Equality Officer’s decision.
Complainant’s Case:
The complainant had been employed by the respondent for fourteen years in a specialist occupation (details of which were provided to the Court). On or about the 25th March, 2002, he became ill and was absent on sick leave until 8th April of that year. Following his return to work, his condition again deteriorated and on the 15th April, 2002, he spoke to Mr H (a partner with the respondent) about his illness. Mr H arranged for him to be examined by a doctor as a result of which he was admitted to a Hospital. He remained as an in-patient in the hospital until 6th June, 2002, when he was discharged. During this period he was under the care of Dr. L a consultant psychiatrist.
The complainant was advised by his doctors that he should return to work on a phased basis. On or around the 14th June he had a discussion with Mr H in relation to his possible return to work and he requested that he be allowed to do so on a phased basis, as proposed by his doctor. He told the Court that this meeting had taken place outside working hours in a local pub. The complainant felt that Mr H was agreeable to his proposal. The complainant indicated to Mr H that he would visit the workplace informally on Friday 21st June 2002 with a view to resuming work on a phased basis on the following Monday, 24th June.
On 18th June, 2002, Mr H advised the complainant by phone that the respondent wanted a written report regarding his condition prior to his return to work. This was confirmed in writing by letter of the same date. By letter dated 20th June, 2002, a Dr. F who was registrar to Dr. L (the complainant’s consultant psychiatrist) issued a letter advising that the complainant was fit to return to work but should do so on a phased basis. The complainant delivered this letter to Mr H when he visited the workplace on the 21st June. The complainant told the Court that he was shocked by Mr H’s treatment of him on that date. The complainant said that Mr H had become hostile to the proposal that he would return to work on a phased basis and that his demeanour towards him was antagonistic.
The complainant returned to work as agreed on Monday 24th June and he continued to work as normal hoping to speak with Mr H (who was then absent on sick leave) on the following day about the detail of his proposed phased return to work. He did inform Mr M (a partner with the respondent) that he would be attending hospital on 26th, 27th and 28th of June and that he would be taking one week's holidays the following week.
On the 25th June Mr H meet with the complainant and expressed dissatisfaction with the fact that he would not be returning to work full time. Following his return from holidays, the complainant resumed work on the 9th July. He met with Mr B (who is a partner with the respondent) who informed him that he would not be allowed return to work on a phased basis. The complainant recalled that Mr B also informed him that neither he nor Mr H considered the complainant fit to return to work. The complainant was instructed to attend for examination by a Dr S, a consultant psychiatrist, on the 11th July and not to attend work again until after that examination. The complainant further recalled that Mr B indicated that the respondent could not continue paying him his wages while he was on sick leave. The claimant attended Dr S on the 11th July. On the 15th July he referred a complaint alleging discrimination on grounds of disability to the Office of the Director of Equality Investigations arising from the respondent’s failure to allow him return t work. It is this complaint that forms the subject matter of these proceedings.
On the 18th July, the complainant received a letter from Mr B of the same date stating that Dr S had advised that he was not fit to return to work and that his salary would cease with effect from 19th July. The complainant told the Court that he was extremely distressed by the respondent’s treatment of him. He attended Dr. L on the 19th July who prescribed anti-depressants. He again attended Dr. L on 25th July and on the 1st August. On 1st of August, Dr. L certified the complainant fit to return work on a full time basis.
Having been so certified, the complainant contacted the respondent on the 2nd August and spoke to Mr M. He told Mr M that he had been certified to return to work on a full-time basis and that he would be doing so with effect from Monday 5th August. Later on the same day the complainant received a letter from the respondent (dated 2nd August) delivered by courier requesting that he agree to be examined by an occupational medical specialist nominated by the respondent. He was instructed not to return to work until this specialist had completed his report.
The complainant attended for examination by Dr. D on 13th August. By letter dated 23rd August, the respondents advised the complainant that because his medication had been changed, it was Dr. D’s opinion that he should not resume work until he had been reviewed again by Dr. L.
The complainant again consulted Dr L, who confirmed that he was fit to resume work. He received a written certificate to this effect dated the 23rd September and posted it to the respondent on that day. By letter dated 27th September the respondent informed the complainant that he could return to work on the 9th October.
The complainant returned to work on the 9th October. He told the Court that he was called to a meeting in the boardroom with Mr H and Mr B. He claims to have been subjected to aggressive and hostile treatment by them. He specifically recalled that Mr B raised issues concerning a job which he had undertaken the previous year. The complainant said that he was given a new job description and told that he would no longer deal with clients. He received no indication that this decision might be reviewed in the future. The complainant was also told that his work would be monitored. He had been shown a job description by Dr D but had not had an opportunity to study it. He had never agreed to its terms. The complainant was then given work with deadlines which he regarded as unreasonable.
The complainant told the Court that he felt demeaned by the manner in which the respondent treated him on his return to work. By the second day he felt under stress and feared that he would suffer a relapse of his illness. Mr H and Mr B were ignoring him. He felt that the respondent did not want him back at work and he experienced feelings of apprehension. The complainant told the Court that these events led him to a point where he believed that he had no option but to resign from his employment. He discussed the matter with his wife. She had recently been made redundant and it was not easy to contemplate both of them being unemployed. Nonetheless, the complainant came to the view the situation in which he had been placed was intolerable and would be detrimental to his health and well-being. He decided to resign and did so on 11th October.
In cross-examination the complainant agreed that he had not raised the treatment about which he now complains with the respondent before his resignation. He said that this was because he had been advised by his Doctors not to become involved in argument or confrontation. The complainant also agreed that he had taken almost two days to complete the project which he had been assigned on 9th October and that the respondent had not passed any remark in that regard.
Evidence was also received from MrMcQwho is a former colleague of the complainant. This witness worked for the respondent between 1996 and 2000 in a similar specialist occupation as that of the complainant. He told the Court that he was treated well by his former employer. He found the complainant to be a good colleague and good at his job. His recollection was that the complainant had no difficulty working with clients. He described the working environment with the respondent as very pressurised. He said that the relationship between the partners and their employees was productivity rather than people driven. The witness recalled that employees were required to meet high standards of performance and were often publicly dressed -down by the partners. He said that some employees would answer back but that the complainant rarely did so. He described the management style as blunt and graphic. His recollection was that the complainant had particular difficulties relating to Mr B and it was decided that the complainant’s reporting relationship should be directed more towards Mr H. The witness told the Court that he was aware that the complainant suffered from a stress related illness and he thought that the management of the partnership were also aware of this fact.
In cross-examination the witness agreed that he had left his employment with the respondent on good terms. He also agreed that he had never made any formal complaint about the way in which the complainant was being treated.
Evidence was also given by Ms. K who was employed by the respondent between 1993 and 1998. She said that the management style in the employment could be argumentative and that Mr. B was given to shouting at and bullying employees. She said that this approach was adopted consistently with everybody. She said that Mr. B ranted and raved at the complainant regularly when there was no need to do so. The witness knew that the complainant was ill but she didn’t know the nature of his illness.
In cross-examination the witness said she remained in the employment for four and a half years as she had just returned from Australia and needed a job. She agreed she had never made any formal complaint in relation to the behaviour of any member of management. She also agreed that she had never sought alternative employment during this time.
The complainant’s case is that the respondent failed to accommodate his needs by allowing him to return to work on a phased basis. This, he claims, resulted in him being out of work unnecessarily for over three months. The complainant further contends that another employee, with a different disability, was accommodated in returning to work on a part-time basis and that the less favourable treatment afforded to him constituted discrimination.
The Respondent’s Case:
Evidence was given on behalf of the respondent by Mr. B, Mr. H and Mr M. who are partners in the business and also by Ms. H who is also a partner and financial controller with the respondent. Evidence was also received from Dr. S and Dr. D.
The Court was told in evidence that the complainant was absent on sick leave for protracted periods in the past. He went on sick leave on the 25th March, 2002, and returned on 8th April, 2002. One the 15th April, 2002, the complainant informed Mr. H that he was extremely unwell. He further advised Mr. H that his general practitioner had arranged an appointment for him at a hospital in the following month. Mr. H was so concerned as to the complainant’s state of health that he informed Mr. B immediately. Mr. B arranged for the complainant to attend his own doctor on that day. This doctor was of the opinion that the complainant's condition was sufficient to warrant his immediate admission to hospital.
After his discharge from hospital the complainant met with Mr. H on 14th June to discuss his return to work. Mr. H’s recollection is that the complainant was extremely agitated at this meeting and he informed Mr. H that he was suffering from memory loss. At this meeting the complainant indicated his intention to return to work on 21st June. Mr. H was of the view the complainant’s condition had not ameliorated and was still severe. Mr. H recalled the complainant mentioning that he wished to return to work part-time but he had given no commitment that this could be facilitated.
Subsequently, at the respondent’s request, the complainant gave his consent for the release of his medical records and information on his condition and prognosis. Mr. B spoke to Dr. F, a register to Dr. L, by telephone and requested a report on the complainant’s condition. Dr. F then issued a letter addressed “to whom it may concern” dated 20th June, 2002, in which she stated that the complainant should be able to return to full time employment as in the past. She went on to say that it would be preferable if he could do so on a phased basis.
Mr. H told the Court that he discussed the complainant’s proposed return to work with the other partners of the firm. They were of the view that a phased return was not viable, having regard to the nature of the work at which the complainant was employed. Following this discussion, he telephoned the complainant and told him not to come into work on the 21st of June. Notwithstanding this instruction, the complainant returned to work on 21st June at approximately 12:30pm and remained at work for approximately 2 hours. Mr. H spoke to the complainant at this point and said that he could not take responsibility for his return to work. Mr. H indicated to the complainant that he had to attend a meeting and that they would speak again when the meeting concluded. However, the complainant departed before this meeting ended.
Later that evening, the complainant telephoned Mr. H and apologised for leaving. He indicated his intention to return to full-time employment on the following Monday. The complainant also told Mr. H that he (the complainant) would take full responsibility for his return to work full-time. The complainant attended for work on Monday 24th June and also on the next day. The respondent formed the view that the complainant was incapable of performing any meaningful work on these occasions. The respondent also contends that the complainant posed a serious risk to their enterprise while simultaneously exposing himself to an exacerbation of his symptoms.
Mr. M told the Court in evidence that the complainant was skilled at his occupation and that he was on friendly terms with him. He said that in the nature of the business in which the respondent was engaged, those in the position of the complainant frequently had to work to deadlines. He said that whilst the complainant generally worked to deadlines he occasionally panicked if his work fell behind. Mr. M said that the only occasion on which he recalled the complainant making a complaint concerning his working conditions was when he asked that the requirement for him to report to Mr. B be changed. This was addressed and from then on the complainant reported mainly to Mr. H. In relation to his return to work on 24th June, Mr M recalled that the complainant spent the time filing and appeared unable to do any work at his specialist occupation. He said that the complainant had seemed confused. The complainant told Mr M that he was taking holidays but appeared unsure as to where he was going.
The complainant was on holidays from 1st to 8th July. The respondent says that when the complainant returned to work on the 9th July the partners decided to refer him to Dr S, a consultant psychiatrist. The complainant attended Dr. S on the 11th July. It was Dr. S’s opinion that the complainant was suffering from an illness (details of which were provided to the Court) to the point that he was unable to do his job. Furthermore, Dr. S was of the view that while the complainant had made some response to treatment, he had not activated a significant level of remission to return to his position with the respondent. Dr. S did advise that the complainant be seen by an Occupational Health Physician and, in accordance with that advice, the respondent referred him to Dr. D. Dr. D was of the opinion that as the complainant’s medication had been changed by his consultant psychiatrist he should not return to work until he was further assessed by his own psychiatrist.
The respondent acknowledged that the complainant had sought to return to work on a phased basis. It is their position that such an arrangement was wholly impractical having regard to the nature of the business in which they are engaged. The partners of the respondent told the Court that the complainant's job was such that it would not be practical for one person in his position to start a project and then pass it over to another. They said that any attempt at introducing part-time working in this area would be wholly disruptive of the business. They did accept that they had not discussed the complaint’s proposal for a phased return to work with him or with his medical advisors.
The witnesses for the respondent categorically denied that the atmosphere in the workplace or the respondents management style was as described by witnesses for the complainant.
Ms. H gave evidence in relation to the complainant’s sick leave record (which was detailed in the respondent’s written submission). The record showed that in the year 2002 the complainant has 115 days sick leave, 45 days of which were unpaid. He had varying levels of absence in other years due to illness. During 1995, 1997, and 1998 he also had periods of unpaid sick leave. The witness did, however, accept that on those occasions the complainant asked not to be paid. Ms. H also told the Court the complainant had withdrawn from the firm’s group VHI scheme in August, 2002, while on sick leave. She said that had the complainant not withdrawn from the scheme the respondent would have continued paying his contributions. The respondent did continue to pay his pension contributions during the period in which he was on unpaid sick leave.
Ms. H also referred to the evidence given by witnesses for the complainant in relation to the working atmosphere in the firm. She refuted the evidence given that the atmosphere was oppressive or unpleasant. She said that she had never found it so. This witness told the Court that the evidence given by Ms. K, which she totally refuted, shocked her.
This witness also referred to the position of another employee who was allowed time off to recover from illness. She recalled that this employee was recovering from alcoholism and was allowed to take half days off to attend counselling. This was on the basis that the time lost would be worked up at other times. Ms. H also told the Court that this employee worked in a different capacity to that of the complainant and his absences were less disruptive of the business.
Finally, the complainant returned to work on the 9th October, 2002, having been certified to do so by his consultant psychiatrist. He was asked by the receptionist to meet with Mr. H and Mr. B in the boardroom but he did not attend. Instead, he went to the kitchen to drink tea. The complainant was again invited to attend in the boardroom which he duly did. In their evidence, Mr. H and Mr. B recalled that the complainant was welcomed back to work and told of the respondent’s satisfaction that his Doctor now considered him fit for work. The complainant was then furnished with a job specification and was told that it was expected that he would conform to its provisions. The Court was told that this job specification had previously been presented to the complainant during his consultation with Dr. D.
It was accepted that the complainant was told that he should have no further contact with clients and that queries should, in future, be channelled through another employee. It was the respondent’s evidence that contact with clients was a minor part of the complainant’s responsibilities and the change was necessitated by the complainant’s admission that he was suffering from memory loss. The respondent contends that this adjustment was in ease of the complainant. The respondent further accepts that the complainant was told that his work would be monitored. They say, however, that he did not demur from this proposal.
Mr. M gave evidence of having assigned a small project to the complainant which, he said, was to ease him back into his work regime. He was given a deadline of 4.5 hours to complete the project, which would normally take 2 to 3 hours. It was Mr M’s recollection that the complainant accepted the deadline. The complainant failed to complete the project until 10.45 on the following day. The work which he presented was of poor quality and was not acceptable to Mr M. He was asked to rectify the work and he finally presented the completed project at 3.45 pm on 10th October. On 11th October the complainant was assigned a project which he was asked to complete in one hour. This was double the time which a project of this type would normally take. The complainant passed this project to another employee without having undertaken any work himself.
The respondent says that at 11.45 on 11th October the complainant met with Mr. H and Mr B, at his request. He presented a letter of resignation addressed to Mr. B alleging unreasonable behaviour and referring to a hostile atmosphere in the office. When asked to elaborate on the content of the letter the complainant declined to do so and left the premises.
The respondent contends that there was no basis in fact for the complainant’s assertions and that he had not previously complained about the matters referred to in the letter.
It is the respondent’s case that the complainant was manifestly incapable of working at his occupation at all times material to his complaint concerning the respondent’s refusal to allow him to resume work. The respondent further contends that it acted responsibly in referring the complainant to specialist medical practitioners before allowing him to return to work and that he was treated with every consideration by the firm during his illness. In these circumstances, the respondent contends, there is no basis for his complaints of discrimination.
Medical Evidence.
Evidence was given by the complainant general practitioner Dr. McM, and also by Drs L, S and D. In the case of the latter two Doctors the substance of their evidence was contained in written reposts which were available to the Court and fully considered by it. The Court does not consider it appropriate to recite the content of these reports in this determination. However Dr. McM, the complainants GP, and Dr. L told the Court that the respondent did not seek their advice on matters related to the complainant’s return to work. Dr. S also told the Court that he had not been specifically asked to advise on any special measures which should be taken in relation to the complainant’s return to work.
In was put to Drs. McM and L in cross-examination that the complainant has been certified by Dr. F (registrar to Dr L) as suffering from a particular illness which was not disclosed to the respondent at the material time or in earlier proceedings. Dr McM told the Court that he had never diagnosed the complainant as suffering from this illness. Dr L was also of opinion that the complainant did not have the condition referred to, notwithstanding the stated opinion of Dr. F.
Findings of Fact
Having reviewed all of the evidence adduced, which is summarised in the preceding paragraphs, the Court has, as a matter of probability, reached the following findings of fact in relation to the complaint to which this determination relates:
- The Court accepts that the working environment with the respondent was pressurised and that a least one of the partners would, at times, publicly remonstrate with staff in robust language. The testimony of two independent witnesses, Mr. McQ and Ms. K who gave evidence on behalf of the complainant, supports this conclusion. Nonetheless, there is no evidence to suggest that the respondent was other than a reasonable employer in its overall dealings with its staff. In the case of the complainant, he appears to have been content in his employment for over 14 years. He had extended periods of sick leave in respect of which he received his full pay, except on those occasions on which he declined to accept his salary, believing that he would be under less pressure to return if he was no paid. No issue was taken with the complainant concerning the length or frequency of his absences on sick leave.
When the complainant indicated that he had difficulty in his reporting relationship to Mr B it was agreed that he should generally report to Mr H instead. Mr H befriended the complainant during times of personal difficulty for him and he did not disagree with the suggestion that Mr. H had provided him with a shoulder to cry on. Further, when his state of health deteriorated in April, 2002, the respondent arranged for him to be admitted to hospital and one of the partners drove him there. The partners also remained in contact with the complainant’s wife to check on his progress.- The respondent contends that at all material times it treated the complainant sympathetically and with consideration in relation to his illness. The Court accepts that at the commencement of his illness the respondent did provide commendable assistance to the complainant. However the respondent’s later treatment of the complainant could not be so characterised.
- On his discharge from hospital, the complainant was advised by his consultant psychiatrist that he was fit to resume work but that his return should be phased. The complainant proposed to Mr H that he would return on that basis when they met on 14th June 2002. There appears to have been little in the way of detailed discussion between the parties as to what might have been involved in a phased return to work. Mr H regarded the complainant’s demeanour at this meeting as agitated and confused. Yet, what he said at this meeting were the only representations received from the complainant before the partners of the respondent decided that it was not practicable to accommodate his request.
- On the evidence before it, the Court is satisfied that the respondent had a marked reluctance to accommodate the complainant in returning to work. He had been certified as fit to resume work (albeit on a phased basis) by his own doctors. Nonetheless the respondent, as was its right, sought a second opinion from Dr S. Dr S was furnished with a document detailing the full extent of the complainant’s duties and was asked if he was fit to discharge those duties. The consultant was not asked to advise on what, if any, modifications in those duties might facilitate the complainant in returning to work. On receipt of that consultant’s report, the respondent wrote to the complainant on the 18th July 2002, to the effect that, in the consultant psychiatrist’s opinion, he (the complainant) was not fit to return to work. He was also advised that his salary would cease from the following day.
- In fact, the consultant psychiatrist did not completely rule out the complainant’s return to work. He stated in his report that if there was a different job available to the complainant, whereby he could do some routine work which did not involve a high level of critical or analytical mental ability and which did not require him to be aware of other people’s emotional boundaries, then he would benefit from a gradual return to work in such a situation. The respondent never sought to develop that aspect of the consultant psychiatrist’s advice or to examine the possibilities of providing the type of work referred to in the report.
- The complainant visited his own doctor on the 1st August and was certified as fit to return to work on a full time basis. However this was not acceptable to the respondent who referred him to an occupational medical specialist, Dr D (as had been recommended by the respondents consultant psychiatrist) for further examination. This second examination was not conclusive, and the doctor in question simply recommended that the complainant return to his own consultant psychiatrist (who had already certified him as fit for a return to work) because his medication had been changed. Again, Dr D’s opinion was sought on the complainant’s capability to perform the full range of duties specified in the job description which the respondent provided. He was not asked to advise on what adjustments might facilitate the complainant’s return to work
- The partners of the respondent told the Court that it was not practical to allow the complainant to return to work part-time having regard to the nature of the work in which he was involved. However, the Court is satisfied that little serious consideration was given to what, if any, adjustment could be made so as to accommodate the complainants request. In that regard, the Court notes that the job description provided to the complainant on his return to work states that projects may need to be completed in a matter of hours or can take months to complete. It is noteworthy, moreover, that when the complainant finally returned to work in October, 2002, he was assigned projects of short duration.
The Court is satisfied, as a matter of probability, that he respondent did not seriously consider whether arrangements could be devised whereby the complainant could return to work on a phased basis. Moreover, it is clear from the evidence that the respondent did not seek professional advice from either the consultants which it nominated, or from the complainant’s own Doctors, concerning possible adjustments which could be made in the work regime of the complainant so as to ameliorate his difficulties and facilitate his early return to work, nor did they discuss the matter with the complainant in any serious sense.
- The partners of the respondent told the Court that it was not practical to allow the complainant to return to work part-time having regard to the nature of the work in which he was involved. However, the Court is satisfied that little serious consideration was given to what, if any, adjustment could be made so as to accommodate the complainants request. In that regard, the Court notes that the job description provided to the complainant on his return to work states that projects may need to be completed in a matter of hours or can take months to complete. It is noteworthy, moreover, that when the complainant finally returned to work in October, 2002, he was assigned projects of short duration.
- The respondent said that the complainant suffered from a particular personality defect (details of which were provided) which had a lasting effect. They rely on the discharge note issued by the registrar of the complainant’s consultant to suppose this submission. They say that the content of this note was not disclosed and that the complainant had concealed the true nature of his illness. The consultant told the Court that the complainant was never diagnosed with this condition. In the Court's view little turns on this issue. However, for the sake of completeness, the Court has considered this matter and has come to the view that the complainant does not suffer from the type of disorder referred to by Dr F.
- The complainant also referred to the treatment of a former colleague who was allowed to take a series of half days off work while he was recovering from illness. This individual was in a different occupational category to that of the complainant and it is the respondent contention that the work pattern agreed with him did not disrupt the business of the respondent.The arrangements put in place to facilitate this person were devised in discussion with him and were implemented on a mutually acceptable basis. By contrast, the respondent never engaged in discussion with the complainant in respect of his request for a phased return nor did it seek to identify an acceptable basis upon which it could be accommodated.
The Law.
The complainant’s case is based on the assertion that the respondent did not do all that was reasonable to accommodate his needs by providing special treatment or facilities so as to facilitate his return to work on or after 9th July, 2004. The complainant also contends that he was discriminated against in being treated differently than another employee of the respondent who was facilitated in phased return to while coping with a different disability.
This latter point can be shortly addressed. Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability. The respondent contends that the other employee with whom the complainant draws comparison was capable of doing the job for which he was employed part-time whereas the complainant was not. Whether or not this is a good defence turns on the interpretation and application of section 16 of the Act.
The duty to provide special treatment or facilities, for which the complainant contends, is derived from section 16 of the Act. It provides as follows:
- 16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
(3) (a) For the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking, those duties.
(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.
(c) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.
The nature and extent of an employer’s duty to an employee with a disability was recently considered by this Court inDetermination EDA0413 – An Employer and A Worker,issued on 15th November, 2004. In this case the Court stated as follows:
- “Unlike the other discriminatory grounds prescribed by the Act, the law does not regard the difference between a person with a disability and others as irrelevant. Baroness Hale of Richmond stated the position thus in relation to the corresponding UK provisions in the recent House of Lord decision inArchibald v Fife Council [2004] IRLR:
- “But this legislation is different from the Sex Discrimination Act 1975 and the Race Relations Act 1976. In the latter two, men and women or black and white, as the case may be, are opposite sides of the same coin. Each is to be treated in the same way. Treating men more favourably than women discriminates against women. Treating women more favourably than men discriminates against men. Pregnancy apart, the difference between the genders is generally regarded as irrelevant. The 1975 Act, however, does not regard the difference between disabled people and others as irrelevant. It does not expect each to be treated in the same way. It expects reasonable adjustments to be made to cater for the need of disabled people. It necessarily entails an element of more favourable treatment….”
Later in the Determination, in relation to the effect of section 16, the Court stated as follows:
- “Prima facie, subsection (1)(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which they applied. An applicant for promotion or for training may likewise be rejected on the same grounds. If an existing employee, by reason of disability, is no longer fully able to do the job for which he or she was employed they can lawfully be dismissed for lack of capacity. Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.”“Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if with the benefit of special treatment they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.”
- “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull [2001] IRLR 60)”
- “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (seeBritish Gas Services Ltd v McCaull [2001] IRLR 60)”
Consequence of failure to Provide Reasonable Accommodation.
In this case it is necessary to consider the legal consequences of an employer’s failure to fulfil the duty imposed by section 16(3). It is clear from the Act as a whole that a failure to provide reasonable accommodation in accordance with this section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Act, is defined by section 6. That definition does not include any reference to a failure to fulfil the duty imposed by section 16(3). Further, there is nothing in the Act which gives an independent cause of action for an employer’s failure to provide special treatment of facilities in accordance with that subsection.
It appears to the Court that the purpose and effect of section 16(3) is to be found in a reading of section 16 as a whole. As was pointed out inDetermination EDA0413 – An Employer and A Worker, section 16(1)(b), prima facie, allows an employer to treat a disabled employee less favourably than others in respect to access to employment if he or she is not capable of fully carrying out the duties of the post in question. Thus, in an appropriate case, this subsection can provide a full defence to a claim alleging discrimination on the disability ground. That defence is, however, qualified by section 16(3)(a). This subsection, in effect, provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities.
Considered in this context, the effect of a failure to fulfil the duty imposed by section 16(3)(b) is to negate reliance on section 16(1)(b) as a defence to a claim of discrimination to which that subsection relates rather than to provide a separate cause of action for the failure itself.
Scope of the Duty Imposed by Section 16(3).
InMid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566the EATfor England and Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by section 6(1) of the Disability Discrimination Act 1995 (which corresponds to S16 of the Act) included an obligation to carry out a proper assessment of the disabled employee’s needs. In the headnote of the report the following statement of the law appears:
- “A proper assessment of what is required to eliminate a disabled person’s disadvantage is a necessary part of the duty imposed by S.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6(1) could not be accepted. The making of that assessment cannot be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfillment of that duty and therefore part of it…”
That reasoning is based on the corresponding UK statutory provision which is somewhat differently worded to its Irish equivalent. It is, however, authority for the proposition that an employer must make adequate enquires so as to be in possession of all material information concerning the needs of an employee with a disability before taking decisions which are to the employee’s detriment. It is persuasive in the context of the instant case and the Court adopts it as equally applicable in identifying the scope of an employer’s duty to a disabled employee under section 16(3) of the Act.
Conclusion
It is clear that when the complainant returned to work he was not fully capable of undertaking the duties attached to his occupation on a full – time basis. In these circumstances, the respondent would, prima facie, be entitled to rely on section 16(1) in defending its decision not to allow the complainant back to work. However, that defence could not be relied upon if, with the assistance of special treatment, the complainant would have been capable of resuming work.
Both his own psychiatrist and Dr S believed that the complainant would have benefited from certain adjustments in his normal work arrangements. His own doctors were of the view that a phased return would be desirable. Dr S was of the view that if his duties were modified the complainant would benefit from a gradual return to work. Whilst Dr. S went on to say that since this was not available the complainant could not return to work at that time. However, the possibility of providing such a facility was never considered by the respondent.
It is clear that the respondent wanted the complainant to return to work full-time and fully fit or not at all. It believed that a phased return was impractical. Yet it is clear from the evidence that the respondent had no clear understanding of what was meant by a phased return or of the duration over which it might extend. The decision inMid Staffordshire General Hospital Trustindicated that the duty of an employer to do all that is reasonable to accommodate the needs of an employee with a disability includes the obligation to make an adequate assessment of what is required to meet those needs. That necessarily involves ascertaining the detail of what is required and giving bona fide consideration to how it might be achieved.
On the facts found and set out elsewhere in this Determination, the Court cannot accept that the respondent gave any adequate consideration to providing the complainant with the type of special treatment which would have allowed him to resume work following his discharge from hospital. In these circumstances the respondent cannot rely on section 16(1) of the Act in defending the complainant claim. Consequently, the Court holds that the complainant was discriminated against on grounds of his disability when he was treated differently to employees without a disability, and an employee with a different disability, in not being allowed to resume work following his return from holidays on 9th July 2002. Accordingly, the complainant is entitled to succeed.
It is noted that the Equality Officer also had regard to the events surrounding the complainant’s return to work on 9th, 10th and 11th of October, 2002, and held that the conduct of the respondent on those dates constituted a further infringement of section 16(3) of the Act. In the Courts view these events should, more properly, be considered in the context of the complainant’s claim that he was constructively dismissed on grounds of his disability, which is the subject of a separate Determination (EED0410) of the Court.
Determination
The Court finds that the respondent did discriminate against the complainant on grounds of his disability when it refused to allow him to resume employment between 9th July, 2002, and 9th October, 2002. The Equality Officer awarded the complainant compensation in the amount of €8,000 for the effects of the discrimination. Whilst the Determination of the Court is based on findings which are somewhat different to those reached by the Equality Officer, the Court is none the less satisfied that the award made by the Equality Officer is appropriate.
Accordingly, the decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
5th January, 2005______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.