The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-054
PARTIES
An Applicant
AND
A County Council
(Represented by the Local Government Management Services Board)
File reference: EE/2007/087
Date of issue: 23 April 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6 and 8 - Disability - Access to employment.
1. DISPUTE
1.1 This dispute concerns a claim by an applicant that she was discriminated against by a County Council on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts in relation to access to employment in terms of sections 8(1)(a) of the Acts.
1.2 The complainant referred her claim to the Director of the Equality Tribunal on 21 February 2007 under the Employment Equality Acts. On 8 July 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to Hugh Lonsdale, 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, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(3A) of the Acts and as part of my investigation I proceeded to a hearing on 27 January 2010
2. JOB APPLICATIONS
2.1 The complainant alleges discriminatory treatment on the grounds of disability in relation to access to employment when she applied for the position of Clerical Officer (Word Processing) with the respondent in mid-2006. Following a selection process she was placed 8th on a panel for a permanent position in November 2006.
2.2 On 3 January 2007 the complainant was offered a 22 week temporary contract to cover for someone on maternity leave in the Finance Department of a Borough Council subject to a satisfactory medical. The complainant attended for a medical on 12 January 2007. The medical report confirmed that the complainant had a "chronic back problem. Standing for long periods or lifting would cause her difficulties. I would suggest a six month trial." The final part of the medical report asks, 'Are there any circumstances connected with the health of the candidate which, in your opinion tend to disqualify him/her from performing the duties efficiently and regularly?' , to which the doctor replied "I suspect there may be." On the basis of this medical report the respondent withdrew the offer. The respondent submits that it was a temporary position which needed to be filled speedily and as the initial medical report raised doubts about the complainant's capability they were not in a position to carry out a more detailed assessment. The respondent met the complainant and informed her that the withdrawal of the offer of the temporary contract was based on medical evidence. It was clarified that she remained on the panel for a permanent position and "that should her condition hopefully improve then her next application would be considered solely on the position at that time".
2.3 Subsequently on 10 July 2007 the complainant was asked if she wanted to go ahead with her application for a permanent position and she confirmed that she did. Given the medical report from January 2007 the respondent sent the complainant to an Occupational Health Consultant for a more detailed assessment and at the hearing they submitted a letter they sent to the doctor which included a list of the Clerical Officer duties and a copy of the previous medical report . The complainant attended for the medical on 3 August 2007 and she confirmed at the hearing that the examination was more thorough than the medical she attended in January 2007. The medical report stated "in my opinion currently (the applicant) is medically fit for this work . I would advise the Council of course that the workstation would need to conform to appropriate guidelines and she would need to mobilise on a regular basis, I would estimate some degree of mobilisation every 20 minutes would be reasonable. With respect to her abilities to provide regular and effective service I have to state with reservation the prognosis is guarded........ On the balance of probability I suspect that (the applicant) is likely in the future to have periods of absence from work as a consequence of an exacerbation of her back pain." The respondent submits that there would have been no problem in providing reasonable accommodation in relation to the workstation and mobilisation. However, they were concerned with the complainant's ability to carry out her duties on an ongoing basis. On 3 September 2007 the respondent informed the complainant that, based on the medical report, they would not be proceeding with her application.
3. FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
3.1 The issue for decision is whether the complainant was discriminated against on the ground of her disability in relation to access to employment. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties. The medical reports confirm that the complainant had a back problem and this was accepted by the respondent. I therefore find that the complainant has a disability within the meaning of section 2 of the Acts.
3.2 The complainant made her claim to the Equality Tribunal 21 February 2007, after she had been turned down for the temporary contract, and the respondent contends that I cannot consider the subsequent events, regarding the offer of a permanent position, as they were not included in the original complaint form. If the events were unrelated then it is clear that the complainant would have to submit a further claim to the Equality Tribunal for it to be considered. However, the two offers of employment are inextricably linked to the complainant's application for the position of clerical officer with the respondent and how her disability was dealt with as part of the job offers. I will therefore consider both incidents.
3.3 The complainant contends that both decisions not to proceed with the offers of employment are discriminatory on the ground of her disability. The first medical report said she should be given a six month trial and she was being considered for a 22 week contract. Then, the second report stated that she was currently fit for the work of a Clerical Officer and the respondent did not give her the opportunity to demonstrate her fitness for the job of a Clerical Officer.
3.4 The respondent contends that the first report raised doubts that could not be resolved in time for a temporary appointment to be made and the second report indicated that the complainant would probably not be fit to carry out the duties of a Clerical Officer on an ongoing basis and relies on section 16 (1) of the Acts which states:
“Nothing in thisAct 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 .... is not 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.” Having considered the medical evidence the respondent "concluded that the complainant was not fully competent and available to undertake, and fully capable of undertaking the duties attached to the position of Clerical Officer having regard to the fact that the post was a full time position requiring full time attendance."
3.5 This claim is made on the basis of access to employment. In such cases the prospective employer has to satisfy themselves that a potential employee is "fully competent and .... fully capable of undertaking the duties attached" to the position for which they are being considered. In order to assess the complainant's capability she was medically assessed for the two positions. The first medical report stated that the complainant had a "chronic back problem. Standing for long periods or lifting would cause her difficulties. I would suggest a six month trail." Accordingly the doctor deemed her fit to fulfill the 22 week contract for which she was being considered. However a report of the meeting between the complainant and the respondent after the first offer was withdrawn states that it was explained to the complainant "that the weight of opinion expressed by the medical examiner on the whole suggested that (the applicant) on this occasion would be unable to fulfill her contract". The position was temporary and for a specific purpose, maternity leave cover, and the complainant would have been given a contract to reflect that, which would not have obliged the respondent to keep the complainant in employment beyond the specific period of the contract. In withdrawing the offer of the temporary contract it appears that the respondent looked beyond that 22 week period and made a decision based on the complainant's capability for a permanent position.
3.6 I conclude that the decision to withdraw the offer of the temporary position was based on an incorrect assessment of the medical evidence. Despite being medically assessed as capable for the temporary position the offer was withdrawn and I find that this amounts to discrimination arising from her disability.
3.7 When the offer of a permanent position came they would not have been obliged to move the complainant automatically into the position but would have been entitled to assess her capability to carry out the job on an ongoing basis before they offered her a permanent contract, as they did. The second, more detailed, report assesses the complainant's current condition and then as he was asked "whether or not you would consider (the applicant) to be fit to provide regular and efficient service to (a County Council) in the future" in the duties of a Clerical Officer he concluded that "on the balance of probability I suspect that (the applicant) is likely in the future to have periods of absence from work as a consequence of an exacerbation of her back pain. Additionally as the impact of degeneration occurs then these absences and the extent of her problem may deteriorate, all of this of course is unpredictable and does not in my opinion affect her current capabilities for the full range of normal duties of a Clerical Officer."
3.7 If this prognosis had been made for a current employee then I have no doubt that the respondent would have provided the measures mentioned in the second report in relation to a suitable workstation and regular mobilisation and monitored the individual's capability to carry out the job. However, this prognosis was made for a prospective employee who had an existing back problem and the individual's concerned were charged with deciding whether to recruit the complainant to a permanent position with the respondent. They had a responsibility to assess the medical evidence and decide whether the complainant would be capable of carrying out the duties of a Clerical Officer on an ongoing basis. They had to look beyond the short term, for which the complainant was assessed as fit, and look ahead. The medical report was not definite but raised enough doubt that lead them to conclude that the complainant was not capable of carrying out the job on an ongoing basis.
3.8 The respondent made the decision to withdraw the offer of a permanent position because they considered that the complainant was not "fit to provide regular and efficient service to (a County Council) in the future". In making this decision they relied on medical evidence; in particular the conclusion in the second report which stated, "on the balance of probability I suspect that (the applicant) is likely in the future to have periods of absence from work as a consequence of an exacerbation of her back pain. Additionally as the impact of degeneration occurs then these absences and the extent of her problem may deteriorate, all of this of course is unpredictable and does not in my opinion affect her current capabilities for the full range of normal duties of a Clerical Officer." Therefore the complainant was assessed as being currently capable to carry out the duties of a Clerical Officer but there were doubts as to her future capability.
3.9 The Labour Court in A Health and Fitness Club v A Worker (EED037)¹ (and upheld on appeal in the Circuit Court) sets out an approach which would allow an employer to dismiss an employee with a disability in accordance with section 16 (1) of the Acts ………“if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed." I consider that such an approach can also be taken where an employer is considering whether to recruit an applicant. The Labour Court approach was; "before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”
3.10 In applying that approach to this case it is clear that the respondent, by carrying out a more detailed medical assessment when the complainant was being considered for the permanent position, considered they had all the material facts. The medical assessment raises doubts about the by complainant's capability in the future but does not make an assessment of when the periods of absence would start occurring or how long they would be. Neither was the complainant given the opportunity to comment on the medical evidence. It can be difficult to predict how a medical condition may manifest itself in the future and therefore any decisions based on such predictions should be approached with caution. I understand that the second medical report raised concerns for the respondent about the complainant's condition in the future but given the uncertainty of the language in the report I do not accept that they had sufficient information to withdraw the offer of employment. In order to complete the two stage test and satisfy section 16 (3) of the Acts which states: "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.", I would have expected the respondent to have consulted with the complainant and agreed to refer her to a specialist. I conclude that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts when withdrawing the offer of employment for the permanent position and that this amounts to discriminatory treatment in relation to her disability.
4. DECISION
4.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent did discriminate against the complainant in relation to access to employment on the grounds of disability contrary to S.8(1)(a) of the Acts and in accordance with section 82 of those Acts:
· I award the complainant €12,000 for the discriminatory treatment suffered, and
· I order that the complainant be considered for the next available Clerical Officer position.
.
____________________
Hugh Lonsdale
Equality Officer
23 April 2010
¹ A Health and Fitness Club v A Worker, ED/02/59, Det No EED037