DEC-E2005-032 Full Case Report

Ms. Carmel Boyle (Represented by the CPSU) vs Department of Social and Family Affairs

1. DISPUTE
   1. The dispute concerns a claim by the CPSU, on behalf of Ms. Boyle, against the Department of Social and Family Affairs that she has been discriminated against on the grounds of disability in terms of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was not recommended for appointment to the position of Staff Officer in the local office in Dungloe.
      
2. BACKGROUND
   1. The complainant is employed in the Civil Service as a Clerical Officer. She was assigned to the Department of Social and Family Affairs in October, 1990. The complainant suffers from a serious eye condition and, on the advise of her optician, she is unable to undertake VDU work. When the complainant joined the Department this was not a problem as much of the work was carried out manually as opposed to being computerised. However, many aspects of the job became computerised and the complainant was unable to carry out these tasks. Then in November, 2002 a Staff Officer position in the Dungloe office became vacant and was being filled on the basis of senior/suitable. The complainant was the most senior Clerical Officer but was not offered the position as local management did not recommend her for the position arguing poor performance. It is the complainant’s contention that the reason she was not recommended for promotion was directly related to her eye condition. On this basis she alleges that she was discriminated against on the grounds of her disability under the provisions of the Employment Equality Act, 1998. The respondent denies these allegations.
   2. Consequently the complainant referred her complaint of discriminatory treatment to the Director of Equality Investigations on 21 st March, 2003 under the Employment Equality Act, 1998. In accordance with her powers under Section 75 of that Act the Director then delegated the claim to Mary Rogerson, Equality Officer on 11 th May, 2004. For operational reasons and with the consent of Ms. Rogerson the case was reassigned in accordance with Section 75(7) of the 1998 Act to Gerardine Coyle, Equality Officer on 1 st February, 2005 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Following receipt of submissions a joint hearing took place on 14 th June, 2005. Additional information was received from the respondent on 20 th June, 2005.
      
3. SUMMARY OF THE COMPLAINANT’S SUBMISSION
   1. It is the complainant’s contention that she has been discriminated against by the respondent on the grounds of disability following the failure of the Department to promote her to the post of Staff Officer on a senior suitable basis when such an opportunity arose in November, 2002. Specifically it is argued that the respondent, while fully aware of the complainant’s disability (visual), it:
      1. failed to ‘take appropriate measures’ to enable her to advance in her employment;
      2. did not offer her promotion to Staff Officer on a senior suitable basis despite her being the person next in line for promotion to Staff Officer on that basis;
      3. failed to notify her of any performance doubts (later used to justify her non-promotion) thereby denying her the opportunity of addressing the issues particularly in the light of her disability.
   2. The complainant states that on 13th November, 2002 she was approached by her Local Office Manager (at HEO level) and asked if she would be interested in promotion to a vacant Staff Officer position in the office. She indicated that she would be willing to consider filling the post and the Local Office Manager advised her that he could not recommend her for the post. It is the complainant’s contention that this was the first act of discrimination in this case. The complainant notes that the respondent had earlier advised the Area Manager (at AP level) that the complainant was next in line on a senior suitable basis for consideration for the Staff Officer post which had become vacant in the Dungloe office. Subsequent to the conversation on 13th November, 2002 with the Local Office Manager the complainant received a Clerical Officer to Staff Officer Assessment Form completed by the Local Office Manager in which he held that she was not versatile enough to warrant promotion and recommending intensive training. It is the complainant’s contention that this was the first indication from her manager that he was unhappy with her work and she submits that the criticisms of her work are directly linked to visual disability manifested by her inability to work with computers in the office. Attempts were made by the complainant and her Union to resolve the situation and suggested that she immediately participate in a Supervisory Skills Course and be given the position of Staff Officer on an acting basis for six months. This suggestion was rejected and the Area Manager reaffirmed by letter dated 7th February, 2003 that the complainant would not be recommended for promotion. This, according to the complainant, is the most recent incidence of discrimination. The respondent held that the situation would be kept under constant review with a view to consideration for future vacancies.
   3. The complainant states that on 16 th June, 2000 the Local Office Manager raised concerns about the complainant’s ability to use VDUs with the then Area Manager. The then Area Manager raised the issue with the Regional Manager, Personnel and the respondent’s Work Study Section focussing on the implications for staffing levels rather than addressing her disability with her in a proactive way. The complainant contends that management’s concerns revolved around staffing levels rather than how to take ‘adequate measures’ to facilitate her progression in her employment. In December, 2002 the Local Office Manager wrote to the complainant’s optician outlining some concern about her inability to work on computers and seeking advice on whether the use of a large screen would help. The complainant says that the negative response drew a close to the respondent’s concern about addressing the issue of ‘appropriate measures’.
   4. According to the complainant she was never made aware that her performance as a Clerical Officer was likely to inhibit her promotion to Staff Officer as is required by General Council Agreed Report 9/84. Had she been made so aware of the likely impact her disability would have, the issue of ‘appropriate measures’ could have been addressed. This failure to notify the complainant she contends discriminated against her as her particular difficulties at work related directly to her visual disability. In the area of training the complainant alleges that she was never asked or afforded the opportunity to develop skills appropriate to the supervisory duties that are carried out by the Staff Officer grade. The complainant notes that since bringing this claim she has been offered and participated in training courses for higher duties.
   5. The complainant notes that in the assessment the Local Office Manager argues that she should not be considered suitable because she had not the breadth of experience or skills necessary for the post. According to the complainant the Staff Officer position is essentially a supervisory position and unless one has been appointed to such a post or at least acted in an ‘acting up’ capacity this skill and experience of same cannot be acquired. Similarly certain duties within the Clerical Officer grade require significant use of computers and the complainant contends that an inability to use computers will reduce a Clerical Officer’s exposure to certain work experiences. The complainant therefore argues that, in both areas, she was unaware of the implications for her onward progression until the assessment of 13th November, 2002. According to the complainant the Labour Court, in its Determination, in the case of Eircom and Bridget Boland² (where Ms. Boland had alleged that she had been passed over for promotion on grounds of gender) found it unacceptable that a decision limiting her career was taken without management having raised its concerns with Ms. Boland. In relation to the respondent’s claim that Ms. Boland lacked experience for promotion to a higher grade the Labour Court found that it would be hard to understand how anyone could gain such experience other than by working in the higher position. The complainant contends that she, likewise, was not afforded the opportunity to address the respondent’s concerns as they were not brought to her attention and she could not reasonably have been expected to have the experience level required for the higher duties as no ‘adequate measures’ had been put in place to facilitate her gaining such experience. According to the complainant progression to a higher grade in the Civil Service is not contingent on having experience in the promotional post rather it relates to seniority and suitability of the person within their current grade. The complainant contends that there was in fact a prejudice against her onward promotion because of her visual disability. Rather than proactively engage in a process of addressing her disability the complainant contends that the respondent held that she would not be suitable for promotion on the basis that she could not meet the challenges of any promotional post.
      
4. SUMMARY OF THE RESPONDENT’S SUBMISSION
   1. According to the respondent the complainant entered the Civil Service as a Clerical Assistant Typist in December, 1975. In October, 1990 she transferred as a Clerical Officer from the Department of Justice to the respondent Department’s local office in Dungloe. She advised local management at the time that, due to a serious eye condition, she could not use a VDU. She subsequently had a number of periods of absence related to treatment for her eye condition. The respondent says that the complainant was assigned to clerical work which did not require the use of computer facilities.
   2. It is the respondent’s submission that the work in the Local Office altered radically in the 1990s with the expansion of the computerised payments systems and the abolition of cash payments. The range of duties that the complainant could be assigned in the Local Office was limited, but management took the view that she could not be assigned computer work in line with the medical advice she submitted i.e. a letter from the complainant’s optician advising against the complainant being assigned computer work.
   3. The respondent states that in November, 2002 the Local Office Manager and Area Manager completed a promotion assessment form in respect of the complainant in relation to the filling of a vacant Staff Officer position in the Local Office. The complainant was not recommended for promotion and overall the assessment indicated that her work performance was poor, she did not display qualities required for the higher grade work and had not shown enthusiasm for learning about Social Welfare Schemes. The respondent notes that the Area Manager, when submitting the assessment to Personnel, made it clear that he was aware of the complainant’s eye condition and her position in relation to the assignment to VDU work, but that this had no bearing on the contents of this assignment.
   4. The respondent states that the complainant disputed the assessment on various grounds and a meeting took place between her and local area management on 22 nd January, 2003 about the matter. The Area Manager wrote to the complainant on 7 th February, 2003 and indicated that he and the Local Office Manager were maintaining their positions in relation to the assessment but would review the situation regularly, progress the matter through the Performance Management and Development system and that she would be considered for any future vacancies that would arise, provided that she met the required standards.
   5. The respondent says that a letter issued to the complainant dated 20 th February, 2003 from Personnel indicating that, in the absence of a recommendation of suitability from local management, she was not being recommended for promotion to fill the Staff Officer vacancy that existed in the Local Office at that time, but that the matter would be kept under review. According to the respondent local management were requested to pursue a training programme for the complainant and she attended a number of training courses in 2003.
   6. The respondent states that it does not accept that the complainant was discriminated against because of her disability when she was deemed unsuitable for promotion in 2003. The assessment of her suitability was made on the basis of her work performance and the view of local management that the complainant did not display the required qualities for the higher duties and had not shown any enthusiasm for learning new duties. It is the respondent’s submission that local management arranged for the complainant to be assigned duties not requiring the use of computer facilities and this was arranged at the request of her medical advisors who suggested that she should not carry out VDU work because of her eye condition. The respondent does not accept that the complainant was not aware of the views of local management in relation to her performance until the promotion assessment in November, 2002 and says that local management discussed her performance with her on several occasions. According to the respondent it has endeavoured to provide assistive technology to staff with disabilities and had made significant moves in this direction in recent times. The respondent says that assistive technology will be explored in this case subject to medical advise.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   1. The issue for decision in this claim is whether or not the complainant was discriminated against by the respondent on the grounds of her disability within the meaning of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 when she was not promoted to the position of Staff Officer in the local office in Dungloe. I will also address the issue of whether the respondent was in breach of any duty due to the complainant under Section 16 of the 1998 Act. In making my decision in this claim I have taken into account the submissions, both written and oral, from the parties. Facts
   2. The complainant is employed in the Civil Service as a Clerical Officer. She was assigned to the Department of Social and Family Affairs in October, 1990 and placed in the local office in Dungloe, Co. Donegal. At the time she informed Personnel that she suffered from a serious eye condition and that, on the advice of her optician, she was unable to undertake VDU work. According to the complainant she was told that this was not a problem as much of the work in the local office was manual as opposed to computerised. Management in the local office was also aware of the complainant’s serious eye condition and her inability to carry out computer work. Over time much of the manual work was computerised and the complainant, because of her eye condition, was unable to carry out this work. In November, 2002 the complainant was approached by local management to establish if she would be interested in promotion to a vacant Staff Officer position in the local office which was being filled on the basis of senior/suitable and the complainant was the most senior officer. When the complainant indicated that she would be willing to consider this promotion she was informed by local management that she would not be recommended as suitable for the post.Impact of the complainant’s disability
   3. It is the respondent’s contention that the complainant’s performance did not warrant a recommendation for this promotion. A note accompanying the assessment states that the “local management is aware of the complainant’s eye condition which prevents her from using VDUs as part of her duty and that factor had no bearing on the assessment”. I note that there were no formal reviews of the complainant’s performance prior to this promotion post. It is noteworthy that the complainant’s local management approved the complainant’s increment and upgrading to Higher Clerical Officer prior to the Staff Officer position becoming vacant. The respondent states, however, that local management spoke to her about her performance on a number of occasions. At the hearing of this claim the respondent provided two examples of when the complainant refused to undertake tasks assigned to her. In relation to one of the tasks the respondent stated that she refused to undertake the non computerised elements of it because part of it necessitated work on the computer and she could not, therefore, undertake the complete task. In relation to the second task the respondent said that she felt it would be easier for persons working on hatches to get the information. The respondent also stated that other staff members in the office were under pressure and the complainant could have provided more assistance to them but failed to do so. At the hearing of this claim the respondent stated that the post of Staff Officer is a supervisory position and in order to carry out that function an incumbent of the position would need to have a knowledge and understanding of the work being undertaken by the Clerical Officers. It was the respondent’s contention that the complainant had only limited knowledge and understanding of some elements of the work. On the basis of the foregoing I consider that the complainant’s inability to carry out VDU work because of her eye condition influenced the decision not to recommend her for the promotion position.
   4. At the hearing of this claim the respondent stated that where a promotion position becomes vacant and is to be filled on the basis of senior/suitable, assessments are completed in respect of persons who are eligible for consideration and are senior in their grade. If a person receives a recommendation from management then the person’s sick leave record is examined to ensure that it is not excessive before the person is offered the promotion. According to the respondent it would seek the advise of the Chief Medical Officer in a case where a person’s sick leave exceeded 56 days over a 4 year period to establish which absences, if any, would have been considered as non-recurring and, therefore, could be disregarded as reckonable sick leave for promotion purposes. In this case the complainant’s assessment for promotion to Staff Officer was completed in November, 2002. I note that she was not recommended for promotion by local management. However had she been recommended for promotion her sick leave record would then have been examined. The respondent submitted the complainant’s sick leave record to me and I note that for the 4 year period prior to the completion of the complainant’s assessment for this position (November, 2002) the complainant had 77 days sick leave. Of these 77 days sick leave I note that 18 of them clearly relate to her eye condition, 15 were not specified and the remainder related to various other illnesses and infections. I note that, had the complainant been recommended for appointment, her sick leave record would have been sent to the Chief Medical Officer because it exceeded 56 days in 4 years and had occurred right throughout the 4 year period. In these circumstances I am satisfied that there is no guarantee that the complainant would have been offered the promotion position of Staff Officer because of her sick leave record. The respondent’s duty
   5. The nature and extent of an employer’s obligations to people with disabilities is set out in Section 16 of the Employment Equality Act, 1998 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-
      
      (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or
      
      (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.
      
      (2) [Not relevant]
      
      (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 special treatment of 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 Labour Court in the case of An Employer and A Worker³ held 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, 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 (see British Gas Services Ltd v McCaull [2001] IRLR 60).
      
      The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective. This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee (see the Determination of this Court in A Health and Fitness Club and A Worker (Determination 037) which was upheld by Her Honour Judge Dunne (as she then was) on appeal to the Circuit Court) ”.Application of Section 16 Duty
   6. In this case the respondent (both local management and the respondent’s Personnel Department) were aware that the complainant was suffering from a serious eye condition and could not carry out any computer work. At the time of her assignment to the respondent Department the complainant informed the respondent of this and was told it was not a problem as much of the work was manual and not computerised. Throughout the 1990s the work became more computerised and it is the respondent’s contention that it had difficulty finding non-computerised work for the complainant. (I note the complainant’s submission that she had plenty of work and was kept busy every day.) In this regard the local management wrote to the Personnel Department about the complainant referring to the impact of her eye condition on computerised work and seeking clarification if the complainant could be considered as surplus staff in the office. The records do not show any response but there is an email from one staff member to another staff member in Personnel stating “can we discuss – we need to answer even if we don’t know”. The issue of the complainant’s eye condition was then raised again in November, 2002 when local management would not recommend her for promotion to Staff Officer on the basis of suitability.
   7. The respondent accepted that the complainant was unable to work on computers and did not require her to do so. From the respondent’s perspective it was affording the complainant special treatment which allowed her to continue in her employment. It is also clear that the complainant did not express the desire to work on computers or indeed to become familiar with any tasks which had a computerised dimension. On the other hand the complainant was not aware that her performance was giving rise to concern to local management to such an extent that she would not be recommended for promotion in the event of such an opportunity arising. I note that in 2000 the respondent (i.e. local management) wrote to the complainant’s optician (with the complainant’s knowledge) asking whether she would be able to use computers if she was accommodated with a large screen and the response received was that the complainant should not be put on any computer work. At the hearing of this claim the respondent stated that the complainant was not included on the list of persons who had entered the respondent Department with a stated disability as the complainant had not come to the respondent Department from a disabled person competition. However within the past six months or more the Disabled Liaison Officer has become involved with the complainant and the respondent is seeking to have the complainant assessed by the National Council for the Blind as to what options may be available in relation to the computerised work. The respondent states that this assessment may not find a solution but it may raise possibilities which can be explored with a view to enabling the complainant to complete more tasks than she is currently able to do. The respondent also notes that the complainant has been sent on training courses which would benefit her in the role of Staff Officer should she attain that position as some stage in the future.
   8. Having regard to all of the above I find that the respondent failed in its duty to the complainant under Section 16 of the Employment Equality Act, 1998. The complainant had no prior notice of local management concern about her performance such that it would not recommend her for promotion to the position of Staff Officer. I have found at paragraph 5.3 above that the complainant’s inability to carry out computer tasks did impact on this decision. While the respondent has to be complimented for relieving the complainant of the obligation to perform computer tasks, the implications of this should have been addressed with her especially where it contributed to adversely affecting her promotion prospects. Furthermore I note that the respondent has recently endeavoured to address its concerns with the complainant’s ability to perform computer tasks by organising an assessment of her condition by the National Council for the Blind. While this is very welcome (at this late stage) there is no reason why these endeavours could not have been put in place in 2000 when local management raised its concerns about the complainant’s workload given her eye condition with Personnel in the respondent Department. Had this happened at that time local management may have been in a position to recommend the complainant for promotion to Staff Officer when the vacancy occurred in 2002. Even if the complainant had been recommended for promotion to Staff Officer in 2002 there was no guarantee she would have been appointed to the post on the basis of her sick leave record (see paragraph 5.4 above). In making my findings in this claim I have had regard to the approach of the Labour Court in the cases ofA Health and Fitness Club and A Worker⁴, An Employer and A Worker⁵ and An Employer and A Worker (Mr. O)⁶.
   9. In conclusion, therefore, I find that the decision not to recommend the complainant for promotion to the vacant Staff Officer position was influenced by the fact that she was unable to carry out computer tasks due to her eye condition. I am satisfied that, even if the complainant had been recommended for promotion, her sick leave record (for conditions other than her eye condition) might have militated against her being appointed to the vacant Staff Officer position. I further conclude that the respondent failed to fulfil the duty imposed by Section 16(3) of the Employment Equality Act, 1998.
      
6. DECISION
   1. In view of the foregoing I find that the Department of Social and Family Affairs did discriminate against Ms. Boyle on the grounds of disability within the meaning of Sections 6(1) and 6(2)(g) of the Employment Equality Act, 1998 and contrary to the provisions of Section 8 of that Act when it had regard to her disability in its decision not to recommend her for promotion to the vacant position of Staff Officer. I further find that the respondent discriminated against the complainant when it failed to provide her with reasonable accommodation under the provisions of Section 16 of the Employment Equality Act, 1998.
   2. In accordance with Section 82 of the Employment Equality Act, 1998 I hereby order the following:
      1. that the respondent pay Ms. Boyle the sum of € 10,000 by way of compensation for the breach of his rights to equal treatment under the Employment Equality Act, 1998 and for the stress suffered as a result of the discrimination;and
         
         
      2. that the respondent undertake training of staff working in its Personnel Department on the obligations on the employer to provide reasonable accommodation to staff with disabilities.

Gerardine Coyle,
Equality Officer,
7th July, 2005

²Labour Court Determination – Eircom v Bridget Boland – DEE031 dated 24th January, 2003

³Labour Court Determination – EDA0413 dated 15th November, 2004

⁴Labour Court Determination - EED037 dated 18th February, 2003

⁵Labour Court Determination – EDA0413 dated 15th November, 2004

⁶Labour Court Determination – EDA0419 dated 5th January, 2005