THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC – E2009 - 073
PARTIES
An Employee
and
A Telecommunications Company
(represented by Brian Conroy BL acting on instruction from
Arthur Cox Solicitors)
File Reference: EE/2007/064
Date of Issue: 2nd September 2009
1 Claim
1.1 The complainant alleges that following a period of sick leave related to recovery from surgery the respondent did not provide reasonable accommodation to facilitate his return to work and that this constitutes discrimination on the disability ground.
2 Background
2.1 The complainant referred a claim to the Director of the Equality Tribunal under the Employment Equality Acts 1998-2007 on 8th February 2007. In accordance with her powers under section 75 of the Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The case was delegated on 21st January 2009 and my investigation began on that date. By letter dated 23rd January 2009 both parties were informed that a hearing of the claim would take place on 13th March 2009.
2.2 An adjournment of the hearing was agreed to allow the respondent to address matters which it had previously refused to address. At the reconvened hearing on 14th July 2009 the complainant withdrew his complaints in relation to these matters and they will not be addressed in this Decision.
3 Summary of the Complainant’s Case
3.1 The complainant has worked for the respondent for approximately 36 years and was initially a civil servant.
3.2 He had major surgery in June 2006. On 1st August 2006 he indicated to his employer by telephone, that he wished to return to work. He followed this up with a detailed email which included details of the various roles he recently held with the respondent to facilitate the finding of suitable work for him but indicating that his primary concern was to get back to work. He got no response to this. On 23rd August 2006 the complainant returned to work having been certified as fit to return by his GP with the proviso that he was “not currently suitable for heavy work as a result of complications incurred during surgery”. The respondent’s Chief Medical Officer also certified him as fit for work saying “it would be helpful if he was confined to deskwork and light physical work until the end of the year.
3.3 On 13th September the complainant was informed that there was no light work available for him and that he should remain on sick leave until he was certified as fit for the full range of duties. The complainant replied to this letter on 19th September 2006 but received no reply. He wrote again on 6th October. On 23rd October 2006 a solicitor retained by the complainant wrote to the respondent. On 10th November 2006 the respondent wrote indicating that the complainant’s case was being referred to a consultancy providing medical and vocational services.
3.4 Following contact with that consultancy the complainant decided that their services were not relevant to him and that he would return to work full-time, coping with whatever discomfort arose. His GP certified him as fit. Following an unsatisfactory conversation with the consultancy he was referred to a doctor who certified him as fit to return to the full range of duties.
4 Summary of the Respondent’s case
4.1 The respondent accepts that the complainant suffered from a disability at all material times.
4.2 It further accepts that the complainant was treated differently from a comparable employee without a disability since he was not in a position to carry out the full duties of his employment during the relevant period.
4.3 The complainant was absent on fully paid sick leave from June 2nd until 18th December 2006.
4.4 The respondent submits that it went over and above its statutory duty through the extensive investigation with particular regard to
· The completion of a report by the respondent Chief Medical Officer (CMO) following a referral on 31/8/06
· The engagement of a consultancy to explore options for the complainant's return to work in Autumn 2006, and
· The engagement of an independent physician on 18th December 2006.
4.5 The respondent relies on section 16 as a defence but submits this cannot be interpreted as requiring an employer to create an entirely new and separate role.
4.6 In its submission the respondent submitted that the duties associated with the complainant's role are inherently heavy and physical and that no measures of the kind described in section 16 could have availed him in undertaking them. Therefore, it is submitted, the concept of reasonable accommodation, as a matter of law, is inapplicable in this case.
4.7 The respondent referred to Labour Court Determination A Health & Fitness Club v a Worker, EED037 and to Tribunal Decision Gannon v Milford Care Centre, DEC-E2004-048. The respondent submitted, based on Gannon, that it was not required or obliged to consider the posts previously held by the complainant in relation to reasonable accommodation. While not obliged to do so, the respondent did consider these areas and concluded that the work was not suitable as the exertion required was too great. As a precaution, the respondent further checked if a position was available and found that there was none.
5 Conclusions of the Equality Officer
5.1 It is agreed that the complainant suffered from a disability at all material times. It is also agreed that he was treated differently because of his inability to perform all aspects of his role. What must be decided is whether or not section 16 provides the respondent with a defence for that different treatment, whether reasonable accommodation should have been provided and if so was the requirement satisfied by the efforts of the respondent.
5.2 The burden of proof required of the complainant is detailed in section 85A of the Acts which provides that should a complainant establish facts from which it may be presumed that s/he suffered discrimination, it is for the respondent to prove the contrary. Therefore, it is necessary for the complainant to establish as facts matters on which he will rely to establish a prima facie case before the burden of proof can shift. Detailed application of this approach may be found in Mitchell v Southern Health Board [2001] ELR201.
5.3 Labour Court Determination An Employer and A Worker EDA0413 deals with such matters 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.
5.4 In the instant case the complainant was suffering from a disability that was not expected to be of indefinite duration. He was seen to be making a good recovery from his surgery and this was explicitly mentioned by the respondent CMO following the referral appointment on 31st August 2006. If section 16(1) applied in isolation I would be satisfied that the respondent was entitled to place the complainant on leave until he was fully competent and capable of undertaking all aspects of his role. However, Determination EDA0413 goes on:
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.
5.5 While I note that section 16 was amended in 2004 I am satisfied that the qualification of subsection 1 by subsection 3 remains and that the requirement to consider the provision of reasonable accommodation is applicable to this case. Since the complainant was instructed to remain on sick leave, at a time when he felt he was fit to return to work in an adjusted capacity, I find that he has established a prima facie case that the respondent failed to provide reasonable accommodation to facilitate his return to work while not fully fit.
5.6 Determination EDA0413 goes on:
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)
5.7 It should be noted that the respondent presented no records of the consideration of alternative roles, adjusted roles with tasks removed or alternative attendance patterns. There is an abundance of medical reports on the complainant's ability which is described only in general terms. There is no substantiation of the respondent's position that his role at that time could not be adjusted with the removal of the agreed strenuous tasks. There is no justification available of the conclusion that the other roles, with or without adjustment, would not have been acceptable and appropriate to the complainant.
5.8 The complainant has worked for the respondent for approximately 36 years. He had worked in his current role only 9 to 10 months when he became ill requiring surgery. The previous positions held included a training role which the complainant contemporaneously suggested, on 1st August 2006, could be conducted remotely. He also indicated his considerable spread of experience of different types of work and pointed to other service areas where he had recently worked, at the same grade. He asserted the work in these areas did not have the same strenuous aspects as his present role and he indicated he could manage the full role. In this same email the complainant accepted that it may be some time before he could return to his original role.
5.9 Evidence from the respondent in relation to these matters was presented orally by the Attendance and Discipline Manager and the Workplace Relations Manager. Their evidence was that local managers were contacted initially but no suitable roles were available. It appears that the respondent consideration of alternative roles was limited to full time alternative desk-bound roles. There is no evidence that any consideration was given at that time to alternative attendance patterns or the redistribution of tasks within various roles. Nor was any evidence presented that might suggest that the cost of covering these arrangements could amount to a disproportionate burden on the respondent.
5.10 The consultancy ultimately proposed a phased return to work for the complainant - possibly one day per week. Undisputed evidence was presented indicating that the complainant's role before his sick leave involved projects that took several days and possibly weeks to complete. Therefore a phased return to work of one day per week would necessarily require the redistribution of tasks.
5.11 The Attendance and Discipline Manager confirmed that employees normally have a phased return to work after extended sick leave. The respondent found it helpful to have phasing.
5.12 No explanation was presented as to why the redistribution of tasks was considered possible in December 2006 when a redistribution (taking account of strenuous tasks) was not considered in September 2006. I am satisfied that the respondent, based on their interpretation of the CMO's report, decided that light duties meant that the complainant was not fit for his current role. I am satisfied that this was interpreted as meaning he was not fit for the role at all. No evidence was presented to support a position that no part of the role was suitable for the complainant at that time or to suggest that any consideration was given to splitting the role and redistributing the tasks.
5.13 The considerations that were undertaken appear to have been ad hoc and informal with no records of either contacts made or reasoned decisions reached. On the basis of these considerations the respondent decided that no accommodation could be made for the complainant.
5.14 No justification of this decision was presented that would indicate that a disproportionate burden would have arisen for the respondent.
5.15 In Decision Gannon v Milford Care Centre, DEC-E2004-048 the Equality officer stated "I am of the view that all possible alternatives must be explored, on a case by case basis, to see if an employer can facilitate a reasonable accommodation for an employee with a disability."
5.16 I am satisfied that the respondent failed to consider many possible alternatives. I am also satisfied that the respondent has failed to establish that they were justified in its decision due to any disproportionate burden that may have arisen and it has failed therefore to rebut the complainant's case.
5.17 The respondent argued that Decision Gannon v Milford Care Centre, DEC-E2004-048 meant that they were not required to consider the complainant for roles other than the one he held at the time. The Gannon Decision indicates that there is no requirement to offer an employee light duties in other positions for which the employee was not originally recruited. The situation in the instant case is somewhat different. The complainant had worked for the respondent for approximately 36 years. The posts he held before his current role are at the same grade as his present post and the complainant has moved between the various roles while holding the same grade. In that situation it would be wrong to suggest that these other roles should not be considered and in that regard I reject the respondents arguments. I accept that such roles were, in fact, considered and that in one of these areas reductions of staff numbers were underway. However, I am satisfied that in this regard also, the respondent made only informal enquiries in relation to a full-time desk-bound role without considering the redistribution of tasks or adjustment of attendance patterns. I also find that no consideration was given to the complainant's suggestion in relation to the training post to be undertaken remotely and there is no record of why it was unacceptable. There appears to have been no real engagement with the complainant.
5.18 Finally, I note that having made its decision the respondent did not revisit the issue and did not respond to the complainant until after contact was made by a solicitor on the complainant's behalf. At that stage the case was referred to the newly-contracted consultancy.
5.19 I find that in this case section 16(1), qualified by section 16(3), does not provide the respondent with a defence. I find that the respondent was required to consider the provision of reasonable accommodation in this case. I also find that the actions of the respondent were insufficient in the circumstances and that no case of disproportionate burden has been made.
5.20 On that basis I find that the complainant has established a prima facie case of discrimination on the disability ground which the respondent has failed to rebut.
6 Decision
6.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. Having found that the complainant established a prima facie case of discrimination which the respondent has failed to rebut this Decision is in favour of the complainant.
6.2 I hereby order the respondent to pay the complainant €5000 for the effects of the discrimination.
Bernadette Treanor
Equality Officer
2nd September 2009