FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A HOTEL REPRESENTED BY MR J EARDLY B.L. (INSTRUCTED BY MCGOVERN & ASSOCIATES) - AND - A WORKER (REPRESENTED BY JOHN GERARD CULLEN) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal under Section 83 of The Employment Equality Act, 1998. Dec-E2006-44
BACKGROUND:
2. Labour Court hearings took place on 20th April and 20th July, 2007. The following is the Courts Determination:
DETERMINATION:
This is an appeal by the Hotel (herein after called “the Respondent”) against the decision of an Equality Officer in a claim alleging discrimination on the disability ground brought by the worker (herein after called “the Complainant”).
The Complainant complained that she was discriminated against on the gender and disability grounds in relation to her conditions of employment and furthermore that she was dismissed on the disability grounds, in breach of terms of Section 6(2)(a) and (g) of the Employment Equality Acts, 1998 and 2004 (The Acts) and in contravention of Section 8 of the Acts. She also claimed that the Respondent did not make sufficient efforts to accommodate her disability and thus facilitate her to carry out her duties. Furthermore, she claimed that she was victimised by the Respondent.
Having investigated the complaint, the Equality Officer found that there was insufficient evidence to establish a prima facie case of discrimination on the gender grounds. This finding was not appealed by the Complainant.
The Equality Officer found that the Respondent discriminated against the Complainant in relation to her conditions of employment and dismissed her on grounds of her disability in contravention of the provisions of Section 8 of the Employment Equality Acts 1998. The Equality Officer awarded the Complainant compensation in the total amount of €15,000 for the effects of the discrimination. Counsel on behalf of the Hotel appealed to the Court against that decision.
The Equality Officer did not make a finding on the claim that the complainant was victimised contrary to the provisions of the Acts.
Background
The Complainant was employed by the Respondent as a Sales Executive and commenced on Monday 30th May 2005. It is accepted by all parties that the Complainant suffers from a mild form of osteoarthritis. According to a medical report furnished to the Court:
“Ms. X has a condition of mild osteoarthritis of the right knee. From my knowledge of the patient this can cause swelling in circumstances where the patient is obliged to climb stairs on a constant, continual and repetitive basis.”
Early in 2005, when the Complainant applied for a position with the Respondent as a Sales Executive she went through a lengthy interview process and was appointed with effect from the 30th May 2005. She states that she informed the Respondent of her disability during the interview process. This is strongly disputed by the Respondent.
On the first day of her employment she discovered that instead of having a single office as she had in her previous positions she was now required to share an office which she found to be wholly unsuitable, in her own words:
- “The physical environment of this office, the constant traffic of other hotel personnel, the heat, the overcrowding was certainly not conducive to an efficient and productive working environment. It was extremely stressful. In my two previous places of employment, I had worked solely from my own office and felt that I had been deceived into accepting these substandard conditions which were only revealed to me after I had left my old job on the strength of the assurances of [Mr. S.].”
Her office was located up 22 steps of stairs and there was no lift. This caused difficulties for her due to her disability. On the second day of her employment when she arrived at work she reported to the General Manager that due to the conditions she endured on the first day she had suffered pain and discomfort overnight. She enquired about alternative office accommodation downstairs. The following morning 1st June 2005, at a meeting between the General Manager and the Complainant, he informed her that he could not find a solution. The Complainant left the premises and the employment ceased from that day. The Complainant submitted a claim under the Acts to the Equality Tribunal on 6th July 2005.
The Respondent’s case
In it’s submission the Respondent denied that it discriminated against the Complainant on the gender or disability grounds and denied that she was dismissed.
Counsel for the Respondent Mr. John Eardly B.L., stated that the Hotel had opened for business in September 2003 and was built in compliance with building regulations and planning permission. The Complainant had been recruited as a Sales Executive after a lengthy interview process. Mr. Eardly B.L. stated that on the Complainant’s first day of employment she discovered that her office location was up a flight of stairs, she would be sharing it with a number of people, it was a very busy office with people coming and going and there were no lift facilities. The Complainant had not previously made it known to the Respondent that she had a knee injury or that she would have a problem climbing stairs. This problem did not become known until she informed the General Manager’s Secretary of her reservations about the office space and the stairs on the first day of her employment. The General Manager explained to her that there was no alternative office accommodation available. The Complainant suggested that she might work in an office located behind the reception desk. He informed her that this office, which measured 2 metres by 3 metres, was not available as it was already in use by other staff. He asked her to give the matter some thought overnight. He told the Court that he was not dismissive of her medical condition or of people with disabilities.
The next day he met with the Complainant to discuss the situation. She told him that she had suffered difficulties with her knee overnight and forcefully presented him with “an ultimatum” categorically stating that she was not prepared to carry out her duties suffering such severe consequences.
He enquired why she had not mentioned this problem at interview. She replied that as it was a modern hotel she expected her office would be located on the ground floor or be serviced by an elevator.
Her conclusion was that there was no point in staying for the duration of the day and she went home.
Mr. Eardly B.L. submitted to the Court that at the interview process, the Complainant had misrepresented her ability to do the job by not mentioning her disability and she had misled them by listing “walking” as one of her hobbies on her curriculum vitae. It had been made clear to her at interview that her job with the Hotel would entail a significant amount of mobility. It was by no means a“desk bound”job.
He submitted that such actions served to frustrate the statutory rights of the employer as it was lawfully entitled under section 16 (1) of the Acts, to refuse the Complainant employment. It would have been only in that context that the Respondent had to consider the question of reasonable consideration (in the Act referred to as “appropriate measures”) in order to allow her to undertake her duties. Instead due to the Complainant’s failure to inform it of her disability, the Respondent was forced into a situation in which it had insufficient time to consider its options and at a time when it needed her to carry out her duties. He submitted that to all intents and purposes the Respondent had only 24 hours to consider the situation before the Complainant resigned and this placed an unfair onus on the Respondent.
Mr. Eardly B.L. submitted that the failure of the Complainant to provide the Respondent with all material facts in the course of a selection process pertaining to her capability to do a job may be impugned as a misrepresentation and/or breach of contract law and may also be impugned,inter alia,under section 13 (2) of the Safety, Health and Welfare at Work Acts, 2005.
In relation to the question of what the Respondent should have done to reasonably accommodate the Complainant’s disability, Mr. Eardly B.L. submitted that even if an alternative office had been provided she would still not have been able to carry out her duties fully as her job at the Hotel entailed a significant amount of mobility and this was made clear at the interview. She would also have had to travel to trade shows etc. as part of her job description; she would not have been fully capable of undertaking the duties attached to the position. He referred to the provisions of Section 16 (3) of the Act and stated that the provision of a lift to enable the Complainant access to the office would have placed a disproportionate financial burden on the Hotel to accommodate her disability. The Hotel simply did not have any office accommodation at a level suitable for the Complainant and that the provision of such an additional workplace specifically for her would also have placed a disproportionate burden on the Respondent.
Mr. Eardly B.L. submitted that there was no absolute requirement under the Acts to obtain a medical assessment of the Complainant’s disability in seeking to reasonably accommodate her in the workplace. Instead the correct approach is to establish whether what is necessary to accommodate an employee is reasonable in terms of being a disproportionate burden.
The Respondent never challenged her assertion that she suffered from a disability or the fact that she may have required to work from a ground floor office to accommodate it. The issue was whether the degree of accommodation she stated was medically required was reasonable in the circumstances of this case.
The special facilities required of the employer to accommodate her would be unreasonable and a disproportionate burden in terms of cost and disruption to the business. To accommodate her needs a substantial portion of the workplace would need to be restructured in order to make it accessible for her; otherwise she would be substantially confined to a ground floor office. The scale of the accommodation required to be restructured would be such that the employer would be entitled and competent to conclude:
-that the degree of re-organisation and expenditure was unreasonable, and
-that she was no longer capable of doing the job she was engaged to do.
Mr. Eardly B.L. further submitted that the Complainant was at the time of the hearing working in an office, located on the first floor of a building, 18 steps upstairs, with no lift facility. He stated that these circumstances were not significantly different than those pertaining to her employment at the Hotel.
Mr. Eardly B.L. submitted that the Complainant had failed to establish aprima faciecase of discriminatory treatment on the ground of her disability. The Complainant has failed to adduce any evidence of her economic loss and therefore the Equality Officer was not entitled to award a sum of €5000 for such loss.
The Complainant’s case
The Solicitor on behalf of the Complainant, Mr. Cullen, held that she was discriminated against on the grounds of her disability when the Respondent refused to accommodate her by not providing adequate accommodation to take account of her disability. He maintained that alternative arrangements could have been made to ensure that her knee disability did not constitute a bar to her employment in the Hotel. It would not have been necessary to introduce lift facilities to accommodate her. He maintained that there was an onus on management to ensure so far as practicable that such disabilities were accommodated within the workplace. He disputed the Respondent’s contention that she should have informed them of her disability beforehand and that she was misleading in her inclusion of “walking” as one of her hobbies. He held the view that there was nothing inconsistent with walking and being unable to climb stairs.
Mr. Cullen denied that that she would not be able to walk or carry out her job as alleged by the Respondent and described it’s view as being“far reaching and exaggerated”and formed without medical evidence. He contended that if alternative office accommodation could have been found all parts of the Hotel would be accessible to the Complainant with the exception of the plant room which she would have had no need to access.
He told the Court that the Complainant was dissatisfied with the office she was required to work from, she had described it as“very small and overwhelmingly hot”,without air conditioning or ventilation, and designed to accommodate four staff. There were two skylight windows, which were not working properly -“the office door had to be left open in a vain attempt to deal with the unbearable temperature which made working there extremely oppressive”and the door had to be closed whenever there was a conference in the adjoining Leitrim Suite. The room was like a“thoroughfare”with staff from various departments continuously trailing through. The General Manager had explained that all the equipment and telephones etc were to be regarded as ‘communal’, that other staff members could use the P.C. and telephone at her desk and access all her documents -“there was no privacy.”
He disagreed with the Respondent’s view that special arrangements to accommodate the Complainant’s disability would be prohibitively costly and stated that such matters were never considered, discussed or justified with her. He held the view that the Respondent failed to advise the Complainant at the outset of the substandard unauthorised, poorly ventilated and overcrowded room.
He stated that the previous incumbent in the Complainant’s job worked from a first floor office, accessible by lift and used a laptop computer and that the General Manager had a first floor office, accessible by lift. The small office behind the reception desk was reserved exclusively for the Reservation Manager who was the General Manager’s stepson.
Mr. Cullen further submitted that no time restriction was placed on the Hotel to find a solution; by the Respondent’s Manager asking her to give the matter some thought overnight, it was clear they:
-were not going to carry out any further factual investigation;
-were not going to afford her any opportunity to consider or comment on the details of the alleged financial or administrative costs;
-would not countenance any re-arrangement,
-and
-would give her overnight to consider her alternatives – take it or leave it.
Mr. Cullen disputed the various arguments made by the Respondent regarding the mitigating factors, which the Court might consider if it found that the Complainant was discriminated against.
On the issue of whether the Complainant mentioned her disability before been employed, he stated that the employer did not want to know about any problems. He had said to her on her first day that he would“always find a solution by making space available elsewhere”when asked how the Hotel would cope with clients who wished to book a conference room with wheelchair access.
Mr. Cullen stated to the Court that her disability had not rendered her unemployable in any other workplace she had previously worked. She had been out of work from June 2005 to January 2006 and her annual salary would have been €27,000, the actual loss of income therefore was €5000.
The Evidence
Evidence of Mr. S
Mr. S the General Manager of the Hotel explained that the Complainant was successful in a competition for the position of Sales Executive after an interview process which involved three separate interviews held over 1½ hours, 1 hour and 45 minutes duration respectively. He told the Court that she did not mention her disability or any mobility restrictions she may have had and that the first time he became aware of the difficulties was after the Complainant had commenced employment.
He explained that he met with her at 4.30pm on Tuesday 31st May 2005, her second day of employment, to discuss the problem of her office being located on the first floor, with no lift facilities. He explained that at the conclusion of that meeting it was agreed that both would give the matter some thought overnight.
When they met the following morning, she told him that her knee had been swollen the previous evening and she had to apply an ice pack. He said that certain options had crossed his mind to address the difficulties, such as a chairlift, change of bedroom use, etc. however, he did not mention these to the Complainant. He said that the only option she had come up with was to use the Reservations Manager’s office located behind the Reception Desk. This was a very small office, used by the Reservations Manager and by front desk staff and for cash repository. It required frequent access and it contained screens for monitoring security and the Hotel’s radio system. He explained that the duties of the job would have required her to be located in the Hotel 60% - 70% of the time with the remainder being located outside and that once her computer system was installed she would have full access to all files from her office and full access to emails, therefore she would only need to come downstairs to meet clients. He told the Court that when he explained this to her that she had replied in a very forceful manner that she was not going to put up these conditions. At the time it was not the frequency of climbing the stairs, which was mentioned, but the use of the stairs in itself.
He told the Court that at all times he had no reason to believe that she would not have been able to carry out her duties as she had being doing a similar job in a Hotel for the previous six years. He refuted her estimation that the job would entail using the stairs 30 – 40 times per day, and said it would be nonsense to expect her to use the stairs that often in her role as Sales Executive –“it would break continuity and concentration, and would not be effective time management”. He denied that she was dismissed and maintained that he had no intentions of dismissing her.
At the meeting on Wednesday 1st June he told her that having examined the Reservations Manager’s rosters and due to the major difficulties it would present for other staff he had decided that it would not be feasible for her to occupy that office. She replied in a forceful manner that she was not going to put up these conditions, and gave him “an ultimatum” a“fait accompoli”- if he did not provide her with an alternative office there and then she would not stay. He told her he had no other options available, it was her decision to leave the job.
She made the comment that the job“was not worth it”.He said that due to the forceful manner in which she behaved he did not dissuade her. He said that she had been given an opportunity to influence matters but decided to walk out of her own accord. He held the view that the conditions in the office had a more major influence on her decision to leave rather than the use of the stairs.
He denied that he told her to go to Accounts and pick up her P45; he said that this was a statement he would never use. He said that he was“bitterly disappointed”when she decided to leave, as he had invested time and energy in recruiting her.
He gave evidence that the previous incumbent in the Sales Executive job had used a laptop and had operated partially from home and partially from the Hotel. However, this arrangement was operated on a trial basis and had not been satisfactory, as she did not have access to Hotel’s computer systems. As a result they were anxious not to repeat that experience. Since that time the job had evolved even further and now required full access to all of the Hotel’s computer systems.
Evidence of Ms. B.
Ms. B, the General Manager’s Secretary and Head of Department in her evidence told the Court that she had been responsible for the Complainant’s induction. She stated that the Complainant’s office was located on the first floor in the Administration office. The office had 5 workstations with two skylights which were not working properly. It had no windows and no air conditioning. In addition it was a very busy office with people coming and going all the time.
On Monday morning the 30th May 2005, when she was showing the Complainant around the Hotel, she asked whether there were lift facilities available to her office. Ms. B. had replied that there was no lift access to that part of the Hotel. In the afternoon the Complainant complained about the substandard conditions of the office, saying it was extremely hot and stuffy and told her that she suffered from an old knee injury, which was aggravated by using stairs. Ms. B. was surprised with this, as she looked fit and healthy. The Complainant asked whether she could use the office located behind the Reception Desk and Ms. B. explained that the Front of House/Reservation Manager worked from that office at evenings and weekends. The Complainant moved into that office for the remainder of that day.
Ms. B. told the Court that Mr. S. was flexible with all staff and allowed them take time off to cater for personal needs. Ms. B. told the Court that at around 5pm she brought the matter to Mr. S’s attention. He said that he would talk to the Complainant the following day. Ms. B. told him that the Complainant had been using the Reservation’s Manager Office and suggested that it may be a possible solution to the Complainant’s problem. Ms. B. told the Court that Mr. S. was out of the office on business for most of the following day and when he returned at around 5pm he spoke to the Complainant. After the meeting on 1st June 2005 with the General Manager, Ms. B. said that she met the Complainant who was upset and told her she was leaving, she said she had“been let go, there’s nothing here for me”. She said she was “tearful and emotional”, but it was not her place to drag any information out of her.
The Complainant’s Evidence
The Complainant told the Court that she when she accepted the offer of the job as Sales Executive to the Hotel, she did not expect to have any difficulties with the layout of the hotel, as it was a new building. She had previously worked in a similar position in two different hotels. At the interview she mentioned to Mr. S that she had a problem with her knee due to an old injury, however, she was not shown her office prior to starting.
On her first day she was given an induction by Ms. B. who showed her around the Hotel. During the induction she discovered that her office was located on the first floor with no lift facilities. Computer access facilities were not installed for her until the second day. As she needed to gain access to the reservations system on her first day she worked from the Reservations Manager’s office. Late that afternoon she met with Ms. B. and complained about the substandard conditions in the Administration Office and explained to her that she had expected that the Hotel would be compliant with building regulations and that due to a knee injury she had a problem using stairs.
The following day the Computer Engineer came to install computer facilities at her desk in the Administration Office.
She met with Mr. S. at 5pm on Tuesday 31st May and told him that due to her knee problems she would not be able to use the stairs 15 + times per day and suggested that she might work from the Reservations Manager’s Office located behind the Reception Desk. She suggested that she could work around his hours, which usually commenced at 4pm, and would visit clients after that time. He did not offer any solutions and said that they should both think about it overnight. Next morning they met in the Leitrim Suite. She told him that she had suffered such severe pain in her knee overnight that she had had to apply an ice pack. Mr. S. said that he had thought about the issue overnight and that he could not come up with an alternative work location for her. He told her that if she did not like it then there was no point in her being there and she could pick up her P45 from Accounts.
The Complainant told the Court that she felt bitterly disappointed with the whole experience, she felt cheated and humiliated.
When questioned about the number of times she climbed the stairs during her employment with the Hotel on the two days in question, 30th and 31st May 2005, she indicated that it was approximately 10 times each day, however, in her view she estimated that the role of Sales Executive could entail having to use the stairs up to 30 – 40 times per day.
She told the Court that she is currently employed in an office, located on the first floor of a building which has no lift facilities, and climbs the stairs (18 steps) between 4 – 15 times per day without difficulty.
Burden of Proof
It is now trite law that in cases of discrimination the Complainant bears the initial burden of proving the primary facts upon which he or she relies in asserting that discrimination occurred. If that burden is discharged then the probative burden of establishing that the principle of equal treatment was not infringed in relation to the Complainant shifts to the Respondent.
The Complainant carried the onus of proving the primary facts upon which she relies in advancing her claim of discrimination. If she succeeds in discharging that burden and the facts so proved are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the onus is then on the Respondent to prove, as a matter of probability, that his conduct was not motivated by considerations related to the Complainant’s disability or alternatively he successfully avails of defenses under section 16 (3).
Findings of the Court
The Court has given careful consideration to the submissions made by both parties to this case and has examined the evidence given at the hearing. It is accepted by all parties that the Complainant suffered from a mild disability as described by her doctor. The Court notes that the Respondent accepted that the Complainant’s disability would make it difficult for her to access the office allocated to her. The Court has been made aware that the conditions in this office were a considerable source of dissatisfaction to her. This was evident from the submissions made and is borne out by the fact that she now works in a single occupancy office accessible only by a flight of 18 stairs. However, these facts were not known to the Respondent at the time of the Complainant’s termination of her employment and it is well established case law that facts which were not known at the time cannot later be used to retrospectively justify a decision taken.
The Law
The appeal before the Court concerns the Complainant’s allegations of unfavourable treatment in terms of her conditions of employment and dismissal on discriminatory grounds. However, the Court notes that the one aspect of her complaint concerned the conditions of employment related to the “substandard office that indirectly discriminated against female workers”, including herself. The Equality Officer found that there was insufficient evidence to establish a prima facie case of discrimination on the gender grounds, this finding was not appealed.
Therefore, the claim before the Court concerns the allegation that she was discriminated against on the grounds of her disability and the Respondent’s failure to do all that was reasonable to accommodate her needs by providing office accommodation either on the ground floor or accessible by lift facilities.
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.
Section 77(2) of the Acts provides that if a person claims to have been dismissed in circumstances amounting to discrimination by another in contravention of the Act then a claim for redress for the dismissal may be served.The Complainant’s case is based on the assertion that the Respondent discriminated against her due to her disability when it refused to accommodate her by not providing adequate accommodation to enable her carry out her duties, thereby preventing her from continuing in her employment with the Hotel.
There is no dispute that at the time of events complained of, the Respondents accepted that the Complainant had a disability and that the disability prevented her from carrying out her duties.
The duty to provide special treatment or facilities, for which the Complainant contends, is derived from section 16 (i) of the Act, 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—
(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 is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation ( in this subsection referred to as “appropriate measures”) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) in determining whether the measures would impose such a burden account shall be taken, in particular of-
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.
The nature and extent of an employer’s duty to an employee with a disability was 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 Court adopts that reasoning in its approach to the instant case.
Consequence of failure to Provide Reasonable Accommodation.
In this case it is necessary to consider the legal consequences of an employer’s failure to fulfill 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 fulfill 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 or facilities in accordance with that subsection.
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability. InMid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566the EAT for 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 section 16 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…"
The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances.
Conclusion
The Court must consider whether the Complainant was discriminated against on the grounds of her disability when her employment ceased on 1st June 2005 and in such circumstances whether the Respondent failed to provide her with appropriate measures to enable her participate and advance in employment thereby rendering it liable for unlawful discrimination.
The General Manager told the Court that he was presented with an ultimatum, in a very forceful manner, that she was not going to put up with the working conditions. Whereas the Complainant said that management could not come up with an alternative work location and she was told her that if she did not like it then there was no point in her being there and she could pick up her P45 from Accounts.
Based on the evidence, the Court has concluded that matters were decided in a very abrupt fashion at the meeting on 1st June 2005. The Court is of the view that the unsatisfactory office conditions she described were clearly a factor, which influenced her at the time and may have been the cause of her impatience with management. The Respondent said that it was “forced into a situation in which it had insufficient time to consider its options and at a time when it needed her to carry out her duties”.
It is clear to the Court that when the Complainant notified Hotel management of her difficulty with climbing stairs, the Respondent would,prima facie, be entitled to rely on section 16(1) in defending its position that she was not capable of performing her duties. However, that defence could not be relied upon if, with the assistance of special treatment, the Complainant would have been capable of performing her duties. The scope of an employer’s duty is determined by what is necessary and reasonable in the circumstances.
Article 2 of Directive 2000/78 EC on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discriminationwhatsoeveron,inter alia, grounds of disability (emphasis added). InWong v Igen Ltd and othersPeter Gibson LJ considered the scope, which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority, which the Court readily adopts.
The Court is satisfied that her disability was more than a “trivial influence” in the reasons behind the termination of her employment and in those circumstances the Respondent fell short in its duty.
Furthermore, the Court is satisfied that had special facilities been made available to her she would have been capable of doing the job. There is no evidence to show that management made any appropriate enquiries as to what measures might be taken to enable the Complainant to continue with her employment. There is no evidence that he discussed the matter with his staff to see if alternative arrangements could be made. He did not seek to define the exact extent of the Complainant’s disability. He did not seek further information from the Complainant or in any way ask her to postpone her decision pending further enquiry.
The Court is satisfied, as a matter of probability, that the Respondent did not give sufficient consideration to the issue of whether the Complainant could continue to work with the provision of special arrangements to accommodate her disability. Having so found, as the Court is satisfied that the Respondent did not meet the criteria set down in section 16 (3) then it has not discharged that burden. Accordingly, the Complainant is entitled to succeed.
The Court is satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable in the circumstances the Court has taken account of the fact that the Complainant is capable of working elsewhere in an office located on the first floor, without lift facilities, and is of the view that this should be taken into account in terms of mitigation. Accordingly the Court awards the sum of €10,000.00.
Determination
The Court finds that the Respondent discriminated against the Complainant on grounds of her disability. In all the circumstances of this case, the Court awards a sum of €10,000.00 which amount is in respect of the affects of discrimination.
Accordingly, the decision of the Equality Officer is varied.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th December, 2007.______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.