THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2009-111
PARTIES
Ms. Z
(Represented by Maguire McClafferty Solicitors)
and
A Chain Store
(Represented by BCM Hanby Wallace)
File Reference: EE/2007/121
Date of Issue: 8 December 2009
1 Claim
1.1 The complainant alleges that the respondent has discriminated against her in that it failed to provide her with reasonable accommodation to take account of her disability.
1.2 The complainant suffers from epilepsy. After starting to work for the respondent on checkout duties she suffered a number of episodes. She asked to be moved to work other than on the checkouts as she felt that the flashing lights may have been the cause of her episodes. She subsequently went on sick leave as no accommodation could be made. She visited the workplace weekly with her medical certificates and spoke to the HR Manager on occasion. Finally, when after two months the situation remained the same, she resigned. The respondent denies that the situation pertaining at the time could constitute a failure to provide reasonable accommodation.
1.3 Ms. Z referred a claim to the Equality Tribunal under the Employment Equality Acts 1998-2008 on . In accordance with her powers under section 75 of the Acts, the Director 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 Acts. The case was delegated to me on 16th March 2009 and I began my investigation on that date. The hearing was scheduled for 23rd June 2009 and 21st July 2009 but both of these were adjourned. The complainant requested the first adjournment and the respondent the second. Both adjournments were handled in accordance with the Tribunal's procedures. The hearing ultimately took place on 13th October 2009 during which the complainant's representative presented an additional submission. The respondent was allowed 14 days in which to respond and this was received on 26 October 2009.
2 Summary of the Complainant's Case
2.1 The complainant began working for the respondent on a part-time basis on 2nd October 2006 and was placed on checkout duties. She had not mentioned her epilepsy to the respondent as it had been dormant for a number of years until 2005 at which time her medication was adjusted. She remained seizure free until the time of the events leading to this complaint. She suffered a number of episodes subsequent to her starting work for the respondent and on 28th November and 2nd December 2006 she suffered an epileptic aura at work.
2.2 Between that date and 9 December 2006 the complainant made a number of requests for other duties, none of which were acceded to, and on 9th December she was certified as unfit for work in the prevailing conditions. During that period the complainant also canvassed other workers in the store and pointed out to management that there were other employees willing to swap with her.
2.3 The complainant continued to present her medical certificates on a weekly basis and had meetings, some more formal than others, with the HR Manager. The complainant is unable to give dates or times when these discussions took place.
2.4 On 20 January 2007 the complainant again attended the store and spoke with the HR Manager. She asked again about other roles and when she was again told that there were no other suitable roles she resigned.
2.5 The complainant alleges that stock room work was suggested to her but this was at night and might require working at heights. Such a position would therefore have been unsuitable.
2.6 The complainant's representative argues that appropriate measures could have been taken by the respondent in order to accommodate the complainant and that these would not have created an excessive burden.
3 Summary of the Respondent's case
3.1 It is agreed that the complainant was unwell on 28 November and 2 December 2006. The HR Manager maintains she only became aware of the complainant's illness on 9th December.
3.2 The respondent states that all operatives in the store have the same title, that of sales assistant. The complainant was working at the checkout. Other sales assistants were working on the floor restocking and facing off shelves etc. However, these sales assistants could be called to work on checkouts depending on how busy things were. Therefore, although one sales assistance approached management and offered to swap with the complainant, this would not have moved the situation along for the complainant as she could still have been on call to operate a checkout.
3.3 At the hearing, the duties of the sales assistants were listed as checkouts, shop floor, facing off, stock rotation, re-stocking shelves, stock room, sourcing the stock and the delicatessen counter. It was argued that those working on the shop floor had a 70% chance of being called to work on checkouts and while the numbers of staff on duty during the day might suggest that the complainant could avoid such a call account should be taken of rest periods, lunch breaks etc.
3.4 The situation arose at perhaps the busiest time of the year for the respondent store. The respondent argues that the complainant did not allow sufficient time for the matter to be resolved before she resigned and her resignation was therefore premature.
4 Conclusions of the Equality Officer
4.1 What has to be decided is whether or not the respondent was required to provide reasonable accommodation to the complainant and whether or not it failed to do so.
4.2 I am satisfied that the complainant was suffering from a disability in terms of the Acts and this was accepted by the respondent.
4.3 The requirement to provide treatment that goes beyond what is provided to the majority of people, in order to bring people with disabilities to the same starting line, is normally addressed in terms of Section 16 (3) of the Acts
Section 16 (as amended) provides that:
"(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, ....if the individual -
......
(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.
......
(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 -
(i) to have access to employment
....
unless the measures would impose a disproportionate burden on the employer."
The Equality Act 2004 amended the Employment Equality Act 1998 to implement, inter alia, Directive 2000/78, otherwise known as the Framework Directive. Article 5 of the Framework Directive provides as follows:
"In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned."
The interpretation of national law in the light of EU law was addressed by Hamilton CJ in Nathan v Bailey Gibson as follows:
"It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result envisaged by the directive."
.........
"This Court is in the same position and under the same obligations as any other national court to interpret the provisions of s.29c) and s.3 of the Act, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the directive.....
The European Court of Justice has also addressed the matter in Von Colson and Kamann v Land Nordrhein-Westfalen
"However the member states' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows, that in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive no 76/207 national courts are required to interpret their national law in the light of the wording and purpose of the directive in order to achieve the results referred to in the third paragraph of Article 189."
As the 2004 amendment of the Act was designed to implement, inter alia, the Framework Directive, it should be interpreted in a manner to achieve the result envisaged by the Directive. I am satisfied that Article 5 of the Directive creates an independent requirement to provide reasonable accommodation where it is needed in a particular case. In order to give unfettered effect to that Article of the Directive subsection 16(3)(b) of the Acts must be considered to create an independent cause of action without the need for a respondent to rely on the defence in subsection 16(1). I shall apply subsection 16(3)(b) of the Act accordingly.
4.4 Section 16(3) has been addressed at length by the Labour Court for example in such cases as An Employer v a Worker (Mr. O), EDA0419, A Government Department and a Worker, EDA0612, and more recently Bus Eireann and Mr. C, EDA0811. However, the cases cited above relate to incidents occurring before the amendment of the Act.
4.5 Section 16, as amended, was considered by the Equality Officer in decision DEC-E2006-058. In that case a prospective employee whose vision was impaired attended for interview and asked to do the technical test, which formed an intrinsic part of the selection process, electronically. He was not afforded that opportunity. He also claimed that the interview process was tainted by discrimination. The Equality Officer was not satisfied that the process was so tainted and that part of the claim failed. However, the Equality Officer found that the complainant was not afforded the opportunity to take the test as other candidates were.
"I am satisfied that this failure arose from the complainant's vision impairment and that he was treated less favourably than the other candidates as a consequence.
......
- the Act places an obligation on the employer to provide reasonable accommodation to prospective employees at recruitment stage unless it gives rise to a disproportionate burden - and it should have made further enquiries as to the complainant's needs in that regard.
......
the provision of the test in electronic format could not, in any sense, be considered as imposing a disproportionate burden on the respondent and it cannot therefore rely on the defence at section 16(3) of the Acts."
This decision was appealed to the Labour Court but not in respect of reasonable accommodation. I adopt the Equality Officer's reasoning in my approach to the instant case.
4.6 Section 85A of the Employment Equality Acts provides as follows:
Where in any proceedings facts are established by or on behalf of the complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
This requires the complainant in the first instance to establish facts from which it can be inferred that she was not provided with such facilities as would facilitate her continuing in employment with the respondent. If this is satisfied the burden shifts to the respondent to rebut the presumption of discrimination raised.
4.7 It is common case that the complainant had two auras while at work and that she requested to be moved to other roles. It is also agreed that no such arrangements were put in place. The complainant submitted a note from her doctor indicating that the work at the checkout may be a trigger for the episodes. I am satisfied that the complainant has established a prima facie case that a situation existed where she was unable to continue to work in her allocated role and that other roles may have been appropriate for her. She has also established that this situation continued almost two months after she had raised the issue with the respondent. It is now for the respondent to show that it could not provide her with another role to accommodate her disability or that to do so would create a disproportionate burden.
4.8 The respondent argued that almost all of the roles would require at least some occasional work at the checkout. Those on floor duties would be more likely than others to be called but the requirement might still exist none the less.
The respondent also argued that the difficulties arose at the busiest time of the year and that the complainant's resignation was premature and prevented them from addressing the matter in an appropriate time frame. The HR Manager acknowledged during the hearing that the matter might have been addressed sooner.
4.9 Having considered the evidence presented I am satisfied that there existed various options open to the respondent which may have allowed the complainant to work in other areas without being required to work on checkouts. I am satisfied that these would not have created a disproportionate burden on the respondent and therefore the defence in this regard is not available to the respondent. I am also satisfied that the respondent had sufficient time to address the matter in the period after Christmas and therefore the complainant's resignation was not premature.
4.10 The respondent asserted that during the last meeting the possibility of working in the delicatessen counter was mentioned to the complainant. The respondent also asserted that their next step would have been to refer the complainant for a medical assessment of what duties would have been suitable to her. The complainant asserted that no such position was mentioned. Nor was there any mention of a referral for medical assessment. Her representative also argued that had such a suggestion been made to her it is unlikely that she would have resigned.
4.11 I have carefully examined the evidence adduced by the parties and I find the complainant's evidence more compelling. In any event the respondent has no record of any action being taken. No records exist of any positions being offered to the complainant nor of a referral for a medical assessment. I find as a fact that the respondent took little or no action to assess the complainant for her suitability to work or to consider alternative roles without checkout duties. In addition, there was no serious engagement with the complainant with regard to these matters.
4.12 The Labour Court has addressed this matter in EDA0413 as follows:
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).
4.13 In Bus Eireann and Mr. C, EDA0811 the Labour Court stated:
However, the Court is satisfied on the evidence before it that little serious consideration was given to what, if any, adjustment could be made so as to accommodate the Complainant. In that regard, the Court notes that little if any effort was made to enquire about alternative working arrangements for him.
The Court went on to find that this failure to provide reasonable accommodation negated the respondent's opportunity to rely on the defence in section 16(1) prior to the 2004 amendment.
4.14 In the circumstances I find that the respondent has failed to rebut the prima facie case of discrimination established by the complainant.
5 Decision DEC-E2009-111
5.1 Having investigated the above complaint I hereby make the following decision in accordance with Section 79(6) of the Acts. I find that the respondent failed:
- to consider alternative roles without checkout duties for the complainant
- to provide such accommodation as would have established the complainant's fitness to work in a role without checkout duties, and
- to meaningfully engage with the complainant
in accordance with Section 16(3) of the Acts.
5.2 I hereby order the respondent to pay the complainant for the effects of the discrimination:
- €1,000 relating to lost income which is subject to PAYE and PRSI.
- €7000 as compensation which is not liable to PAYE and PRSI.
Bernadette Treanor
Equality Officer
8 December 2009