The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-055
PARTIES
A Government Employee
(Represented by Padraic Hogan BL instructed by
Coughlan White O'Toole Solicitors)
AND
A Government Department
(Represented by David Keane SC instructed by
the Chief State Solicitor's Office)
File reference: EE/2008/316
Date of issue: 23 April 2010
HEADNOTES: Employment Equality Acts, 1998-2008 Sections 6 and 8 - Employment - Discriminatory Treatment - Disability - Conditions of Employment - Failure to provide reasonable accommodation
1. DISPUTE
1.1 This dispute concerns a claim by a government employee that he was discriminated against by a Government Department on the grounds of disability contrary to section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to conditions of employment and a failure to provide reasonable accommodation in terms of sections 8(1)(b) and 16(3) of the Acts.
1.2 The complainant referred his claim to the Director of the Equality Tribunal on 19 May 2008 under the Employment Equality Acts 1998 and 2004. On 20 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 25 January 2010.
2 SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submits that he started working for the respondent on 17 January 1981. In 2002 he was diagnosed with hypertension. On 28 May 2004 he went on sick leave, on the advice of a Consultant Physician, who considered that his current position was causing him stress and exacerbating his blood pressure. On 14 February 2005, whilst still on sick leave, he advised the Department that he wanted to apply for early retirement on ill health grounds on the advice of his GP and a Consultant Physician. Following a medical assessment by the Chief Medical Officer (CMO) his application was refused on 27 June 2005. He appealed the finding of the medical report and saw a Specialist in Occupational Medicine. On 25 October 2005 he was informed that his appeal had been turned down and he was advised that if he did not return to work immediately he would be removed from the payroll. The complainant submits that he did not return to work because of medical advice from a Consultant Physician that it would be a risk to his health to do so. On 9 November 2005 the complainant was removed from the payroll and on 10 January 2006 the complainant was informed that his file was being submitted to the head of his work area for consideration of his dismissal.
2.2 The complainant submits that on 23 January 2006 his representative made a submission to the respondent enclosing copies of medical assessments from a Consultant Physician which disagreed with the assessment of the CMO and the Specialist in Occupational Medicine and indicated that a return to the job he was doing "would be injurious to his health". The complainant requested that no further action be taken until a report was received from a Consultant Cardiologist. On 4 September 2006 the complainant submitted a report from the Consultant Cardiologist which concluded ;"I do not think it would be feasible for Mr Kavanagh to return to his job as it will bring about a recurrence of his previous symptoms."
2.3 The complainant submits that on 12 October 2006 he was reassessed by the respondent's Specialist in Occupational Medicine whose opinion was unchanged from his assessment in October 2005 that; "the history outlined above does not suggest to me that he is totally and permanently disabled or a suitable candidate for ill health retirement". On 4 December 2006 the complainant met a representative from HR who confirmed that the respondent was bound by the view of the CMO, who had endorsed the report of the Specialist in Occupational Medicine. The possibility of lighter work could be explored if the complainant returned to work. The complainant submits that he did not consider this a realistic option to avoid the stress of his job.
2.4 On 5 February 2007 the respondent wrote to the complainant advising him that his file was being sent to the head of his area of work to consider his dismissal. The complainant requested that he be referred to an independent cardiologist but the respondent replied that he had no active illness that required an opinion.
2.5 On 21 February 2008 the complainant was advised that the Minister for the Government Department had agreed to recommend to the Government that he be dismissed. On 4 March 2008 the complainant requested an oral hearing and that he be considered for a transfer to a less stressful position. The complainant submits that he was re-assessed by the Consultant Physician on 12 March 2008 and he recommended; "that he should seek a transfer to a department within the service where his employment would be less stressful." On 7 May 2008 he was refused an oral hearing and was told that he could seek alternative posts through the Public Appointments Service.
2.6 The complainant submits that he has been discriminated against by the respondent's refusal to deem him to have a disability by compelling him to return to work and recommending his dismissal for being chronically unable to provide a regular and effective service. This discrimination relates to his conditions of employment in accordance section 8 of the Acts as his request to retire on ill health grounds was rejected. Discrimination also occurred when he was not allowed an oral hearing and that he was not given adequate opportunity to test the opinion that he was fit to return to work or to influence that decision. Furthermore the complainant submits that he was also discriminated in relation section 16 of the Acts in that he was not allowed reasonable accommodation as the respondent did not take appropriate measures which would have given the complainant access to employment.
3 SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent submits that when the complainant made a request to be considered for early retirement on ill health grounds he was sent for a medical on 24 June 2005 the CMO considered the complainant "fit to go back to his duties" and on 27 June 2005 they therefore rejected his request for early retirement on ill health grounds. The complainant appealed this decision and he was sent to a Medical Referee, the Specialist in Occupational Medicine on 22 September 2005 and he reported that "with respect to his suitability for ill health retirement I believe this gentleman is in good health and fit for employment." . The respondent then wrote to the complainant on 25 October 2005 advising him that the Specialist in Occupational Medicine supported the view of the CMO and requested him to return to work, otherwise he would be removed from the payroll. As he did not return to work the complainant was removed from the payroll on 9 November 2005.
3.2 In January 2006, after the respondent advised him that they intended to propose to the head of his area of work that he be dismissed, the complainant submitted three medical reports from his consultant physician which contradicted the CMO and the Specialist in Occupational Medicine. The complainant was allowed to submit a report from a Consultant Cardiologist before any further action be taken. That report was submitted on 13 September 2006 and the Consultant Cardiologist concluded "I do not think it would be feasible for Mr Kavanagh to return to his job as it will bring about a recurrence of his previous symptoms." The respondent submits that in the light of this report that they arranged for the complainant to see the Medical Referee again on 16 October 2006 and his report concluded that his opinion remained unchanged from his previous assessment. As a result of this report the CMO concluded that "ill health retirement is not appropriate." Consequently, the respondent wrote to the complainant on 16 November 2006 advising him of these reports and requesting him to resume duty immediately.
3.3 The complainant was offered a meeting and he met staff from the Human Resources Department on 4 December 2006. It was suggested that the complainant could discuss the possibility of assuming lighter duties with his manager on his return to work but the complainant was not amenable to this suggestion. The complainant was offered the opportunity to make a further submission. He took this opportunity in February 2007 when he reiterated previous arguments and sought an oral hearing before the head of his area of work. Subsequently he requested a referral to an independent cardiologist. This request was considered by the CMO who concluded "The issue of ill health retirement does not arise, as he is not suffering from any illness that warrants consideration of ill health retirement. Thus, we do not advocate referral to a cardiologist. We have already got sufficient medical information on file about his health." The respondent confirmed this position to the complainant on 22 March 2007.
3.4 The respondent informed the complainant in February 2008 that the Minister had agreed to recommend to the Government that the complainant be dismissed and he was given 14 days to appeal. The complainant appealed and requested an oral hearing before the Minister and that he be considered for transfer to a less stressful position within the Department. The respondent advised the complainant that there would be no oral hearing and he was free to apply for other positions in the Department through the Public Appointments Service. The complainant made this claim to the Equality Tribunal on 19 May 2008 and the respondent submits that they suspended the dismissal proceedings pending the outcome of the claim.
3.5 The respondent submits that this claim was made on 19 May 2008 and any alleged acts of discrimination in relation to the complainant's application to retire on ill health grounds occurred on 27 June 2005, 25 October 2005, 16 November 2006 and 22 March 2007 are all out of time in accordance with section 77(5) of the Acts.
3.6 The respondent further submits that the complainant has failed to establish that he has a disability within the meaning of the Acts.
3.7 The respondent further submits that the claim is in relation to the complainant's request for early retirement on ill health grounds and that this relates to pension rights which are not included in the definition of conditions of employment within the meaning of section 2(4) of the Acts.
4 PRELIMINARY ISSUES
4.1 The respondent raised a preliminary issue that this claim is out of time in accordance section 77(5) of the Acts as the decisions made in relation to the complainant's application for early retirement on ill health grounds on 27 June 2005, 25 October 2005, 16 November 2006 and 22 March 2007 were crystallised one-off decisions and the last date is more than one year before the complaint was made to the Equality Tribunal on 19 May 2008. The complainant contended they appealed the decision in the letter of 22 March 2007 and that in a related chain of events took place his manager wrote to the complainant on 21 February 2008 confirming the Minister's agreement to recommend to the Government that he be dismissed. The complainant appealed that decision and they contend the last act of discrimination was on 7 May 2008 when the Human Resources wrote to the complainant confirming that he would not be granted an oral hearing. This complaint started with the complainant's application for early retirement on ill health grounds but includes his treatment in relation to his disability following the initial application. I therefore find that the letter of 7 May 2008 was the most recent occurrence in a series of related events and as such the complaint is within the time limits set out in section 77(5) of the Acts.
4.2 The respondent also contended that this claim relates to their refusal to grant him early retirement on ill health grounds which a refusal to grant him pension rights associated with ill health retirement and pension rights are not included in the definition of conditions of employment. This claim relates to the complainant's allegation of discriminatory treatment on the ground of disability, which includes but is not restricted to his application for ill health retirement. The consequences of this treatment have effected whether or not he became eligible to receive a pension on ill health grounds. No claim has been made in relation to the pension itself.
5 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The issues for decision are whether the complainant was discriminated against on the grounds of disability in relation to conditions of employment and a failure to provide reasonable accommodation. I have taken into account all of the evidence, both written and oral, made to me by the parties.
5.2 The first issue that I have to address is whether the complainant has a disability within the meaning of the Acts. The complainant was diagnosed with hypertension and was advised by his doctor to go on sick leave when he had difficulty managing his blood pressure. At the hearing he confirmed that he had not considered his job particularly stressful but was advised by his doctor and the consultant physician that a return to his job would bring back a return of the hypertension symptoms. The consultant physician gave evidence at the hearing to confirm this assessment. The respondent put forward the Chief Medical Officer's assessment that the complainant "has some ongoing medical problems they are now well under control and would not generally be considered to give rise to any long term disability" and he was fit to return to his job. Given this assessment the respondent did not accept that the complainant had a disability and requested that he return to work. It is acknowledged that the complainant was being treated for hypertension and even if the condition is well managed it does not mean that he no longer has the condition. If he stopped taking the medication it would be expected that the symptoms would return. This would be similar to a number of other conditions which are considered a disability; such as diabetes. I find that the complainant has a disability within the meaning of section 2(c) of the Acts; in that hypertension is a malfunction of a part of a person's body.
5.3 The complainant contends that he was discriminated against in relation to his conditions of employment when his application for early retirement was refused; despite the medical advice from his GP, Consultant Physician and Consultant Cardiologist that a return to his job would be bad for his health. The respondent had the complainant assessed by the Chief Medical Officer and twice by an independent Medical Referee. They were both aware of the complainant's condition but considered that it was being managed and there was no need for him to be considered for early retirement on ill health grounds and he was fit to return to work. The respondent turned down his request and went through a procedure to dismiss the complainant when he did not return to work. However, the procedure to dismiss the complainant was put into abeyance pending the outcome of this claim.
5.4 The respondent's medical advice was that when they examined the complainant he was fit to return to work, whilst the complainant's medical advice was that a return to work would bring about a return of the symptoms he suffered when he first went out sick. The Specialist in Occupational Medicine had the benefit of the two reports from the Consultant Physician and one from the Consultant Cardiologist when he examined the complainant on the second occasion, as would the Chief Medical Officer when he assessed the Specialist in Occupational Medicine's second report and when he was asked if the complainant should be referred to an independent cardiologist in February 2007. However, neither of them make any reference to the possible effects of a return to work. The Specialist in Occupational Medicine was aware that the complainant considered his job to be stressful but noted that he was not referred for counselling or stress management intervention.
5.5 When the complainant had his application for retirement on ill health grounds turned down initially it was suggested by the respondent that if he returned to work he could discuss the possibility of moving to lighter duties with his manager. The complainant did not consider this a realistic option as there was no guarantee that he would get a change and the probability was that he would be working under the same conditions, which he had been advised would be bad for his health.
5.6 In March 2008 after the complainant was advised that the Minister was recommending to the Government that he be dismissed he requested that the respondent consider him for a transfer to a less stressful position. This was also in the Consultant Physician's report of 12 March 2008 but there is no evidence this was forwarded to the respondent at that time. As they still considered him fit to return to work the respondent did not consider the nature of the complainant's job to be relevant. They advised the complainant that he was free to apply for vacancies through the Public Appointments Service.
5.7 Section 16 (1) offers employers a defence in dismissing people with disabilities when it states: “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.”
However, section 16 (3) (a) of the Employment Equality Acts 1998 – 2007 tempers that defence: “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.”
The Labour Court in A Health and Fitness Club v A Worker (EED037)¹ (and upheld on appeal in the Circuit Court) set out an approach that should be taken in order that a respondent can rely on this defence ………“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. However, 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.”
5.8 In applying that approach to this complaint I must first look at the medical evidence submitted which is clearly contradictory. The respondent accepted the recommendation of the CMO that the complainant was not suitable for early retirement on ill health grounds and was fit to return to work. Therefore they did not consider that the second part of the enquiry set out above was required. The contradiction in the medical evidence is that the reports submitted by the complainant from a Consultant Physician and Consultant Cardiologist both considered that a return to the same duties he was undertaking when he went on sick leave would be bad for his health. The Specialist in Occupational Medicine referred to these reports in his assessments and he noted in his report of October 2005 he stated, "I sympathise with him with respect to the stresses of the job and the fact that he has been there for 25 years but I do not believe this requires him to leave this employment, particularly given that no exploration was made of treatment options which may have facilitated his ability to cope with the stress and remain in employment." In his report of October 2006 he said in relation to the complainant finding his work environment stressful, "I note that prior to leaving work he did not seek any medical help in this regard, he has not been referred for any counselling, he has not attended any stress management course and has not been referred for any psychological or psychiatric evaluation."
5.9 These comments by the Specialist in Occupational Medicine give a clear indication that whilst he acknowledged the complainant's concerns about the stressful nature of his job he did not carry out an assessment of its' impact on the complainant. He also indicates a number of ways in which it could be assessed.
5.10 The respondent focussed on the complainant's application for retirement on ill health and when he was considered unsuitable for this they insisted he return to work. They knew he considered the job stressful but did not acknowledge this once the CMO assessed him as fit to return to work. No attempt was made to discuss this with the complainant and to see if anything could be done to assist his return his return to work; other than to suggest he return to his old job and then to discuss lighter duties with his manager. More than a year later the complainant, facing the threat of dismissal, requested that he be transferred to a less stressful job and this was not considered by the respondent. Also none of the possibilities mentioned by the Specialist in Occupational Medicine were considered. In failing to consider how they might assist the complainant to return to work they failed to fully assess the complainant's capability in accordance with section 16 of the Acts.
5.11 My conclusion is that the respondent’s enquiry into the complainant’s capability was incomplete and that they failed to provide him with reasonable accommodation.
6 DECISION
6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts that the respondent failure to provide reasonable accommodation to the complainant contrary to section 16(3) of the Acts and in doing so discriminated against the complainant on the disability ground pursuant to section 6(2)(g) of the Acts, in respect of conditions of employment contrary to section 8(b) of the Acts.
6.2 In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent:
· as they are still his employer, carry out a re-assessment of the complainant, in accordance with section 16 of the Acts, which should be completed within 6 months, and
· pay him €30,000 in compensation for the distress experienced by the complainant in relation to the above matters, this is not in the nature of pay, and therefore not subject to tax.
___________________
Hugh Lonsdale
Equality Officer
23 April 2010
¹ A Health and Fitness Club v A Worker, ED/02/59, Det No EED037