THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision - DEC-E2010-090
PARTIES
Mrs. X
(represented by Flanagan & Co. Solicitors)
and
A Nursing Home
File Reference: EE/2008/008
Date of Issue: 8th June, 2010
Keywords: Employment Equality Acts, 1998 to 2008 - Section 6 - Discriminatory Dismissal - Disability - Reasonable Accommodation
1. Dispute
1.1 This case concerns a complaint by the complainant, Mrs. X, that she was subjected to discriminatory dismissal by the respondent on the grounds of her disability contrary to section 6(2)(g) and section 77 of the Employment Equality Acts, 1998 to 2008. The complainant also claims that the respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with section 16 of the Employment Equality Acts, 1998 to 2008.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts, 1998 to 2004 to the Director of the Equality Tribunal on 14th January, 2008. In accordance with her powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 25th November, 2009 to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts, 1998 to 2008. This is the date I commenced my investigation. A written submission was received from the complainants on 22nd September, 2009 and from the respondent on 31st October, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 28th April, 2010.
3. Summary of the Complainant's case
3.1 The complainant, Mrs. X, was employed by the respondent as a cleaner on a part-time basis (for 14 hours per week) from May, 2003 until her employment was terminated on 16th July, 2007. The complainant stated that she has epilepsy and that she made the respondent fully aware of her condition prior to her commencement of employment. The complainant stated that she provided the respondent with a letter from her General Practitioner which certified her medically fit to undertake the duties as a cleaner prior to taking up this employment. The complainant stated that her epilepsy did not adversely affect her ability to carry out her duties and she claimed that there were only two occasions during the course of her employment when she was unable to attend for work as a result of her medical condition.
3.2 The complainant stated that she did not require any special facilities or accommodations in order to discharge her daily duties and she submitted that her duties did not differ in any way from those carried out by the other cleaner who was employed by the respondent. The complainant claimed that she didn't have any discussions with the respondent, either at the time she commenced employment or subsequently, in relation to the provision of special measures or accommodations in order to facilitate her to carry out her duties as a cleaner.
3.3 The complainant stated that she suffered a "petit mal" epileptic seizure while at work on 14th July, 2007 as a result of being overcome by the fumes from a varnishing lacquer which had been applied to the floors in the day room on the previous day. The complainant stated that she was taken home from work on this occasion by Mr. C (the husband of one of the partners who comprise the respondent) and was told by him to take the following day off work. The complainant stated that this was only the second occasion that she had to be taken home from work during the course of her employment with the respondent as a result of her epilepsy.
3.4 The complainant stated that Ms. A, Managing Partner of the respondent, called to her home on the following Monday morning, 16th July, 2007 and informed her that she was being made redundant as the Nursing Home was making cutbacks and as a result it no longer required the services of two cleaners. The complainant stated that Ms. A presented her with two redundancy forms for signing and two cheques in settlement of her redundancy and outstanding pay entitlements. The complainant stated that she was totally taken aback with what had happened and that she signed the redundancy forms without affording the matter her full consideration. The complainant stated that she was informed by Ms. A that there was no need for her to return to the workplace or to call to the Nursing Home as the cheques covered all of her entitlements. The complainant stated that she was extremely upset and totally taken by surprise as the respondent had not given her any prior indication that the Nursing Home was making cutbacks or that her position was under threat.
3.5 The complainant stated that she called to the Nursing Home the following day to say goodbye to some of the staff and residents as she had not been afforded this opportunity by the respondent prior to being informed of her dismissal. The complainant stated that she received a telephone call from Ms. A later that day asking why she had called to the Nursing Home and instructing her that there was no need for her to ever return again as everything had been dealt with. The complainant submitted that she did not believe there was a genuine redundancy situation at that juncture and she claimed that her old position was filled immediately by another lady immediately after she had been dismissed. The complainant claims that she was dismissed from her employment purely on the basis of her epilepsy and because of the incident which occurred at the premises of the Nursing Home on 14th July, 2007. The complainant stated that the respondent had never informed her during her employment that she constituted a "safety risk" or that other members of staff had been requested to constantly monitor her on account of her epilepsy.
4. Summary of the Respondent's case
4.1 The respondent operates a nursing home which has been in existence since March, 2001 and it employed approx. 30-32 members of staff, including two cleaners, in July, 2007. The respondent stated that the complainant applied for a position as a care assistant in April, 2003, however she was deemed unsuitable for this position on account of her epilepsy and having regard to the risk of seizures and the likely dangerous consequences for patients. The respondent stated that the complainant became very upset upon being informed that she was unsuitable for the position as a care assistant so it was decided to offer her "a few hours therapeutic work per week" as a cleaner in the nursing home. The respondent stated that the complainant was offered this position on the basis that she was certified fit to carry out this work by her General Practitioner and that she would not use any electrical appliances during the course of her work.
4.2 The respondent stated that its Nursing Staff were informed that the complainant had epilepsy upon the commencement of her employment and it submitted that an arrangement was put in place to have the complainant monitored by the Nursing Staff during the course of her work. The respondent claimed that these measures were necessary because of its concerns for the complainant in the event that she had an epileptic seizure during the course of her work. The respondent accepted that it did not discuss this monitoring arrangement with the complainant, either upon the commencement of her employment or subsequently, as it didn't want to "label" the complainant on account of her disability nor did it want to be seen to treat her any differently than other members of staff. The respondent stated that the complainant commenced employment in May, 2003, working for 14 hours per week, and it claimed that in light of her epilepsy there was never any pressure applied to her in terms of the carrying out of her duties. The respondent stated that it was satisfied to let the complainant carry out whatever amount of work that she felt capable of performing on any given shift.
4.3 Ms. A, Managing Partner of the respondent, stated that there were only 3/4 occasions when the complainant was certified medically unfit to attend for work because of her epilepsy; however, she stated the complainant suffered numerous seizures at work and as a result she would have been sent home from work on approx. five occasions each year during the course of her employment. The respondent referred to an incident which occurred in September, 2006 whereby a doctor, who was visiting residents at the nursing home, had observed that the complainant was medically unfit for work and had advised Nursing Staff on duty to have her taken home. Ms. A stated that the Nursing Staff complained to her in October, 2006 that they were no longer able to accept the added responsibility of monitoring and caring for the complainant in the workplace given the pressure of work which they were under at that juncture.
4.4 Ms. A stated that she discussed this matter with her business partner, Ms. B, and it was decided to make the complainant redundant on the basis that they could no longer provide the required level of staffing to monitor her whilst she was carrying out her duties. The respondent stated that the decision was taken that the complainant would be made redundant in early 2007; however, this decision was subsequently deferred due to a bereavement in the complainant's family and she was eventually informed of her redundancy in July, 2007 which coincided with her annual leave. Ms. A stated that she called to the complainant's home on 16th July, 2007 and informed her that the respondent could no longer retain her in employment and she was paid her redundancy and outstanding pay entitlements on this date. The respondent stated that it did not discuss the redundancy with the complainant prior to this date as it would have been upsetting for her and it did not want to create any disruption at the nursing home. The respondent accepted that the complainant was replaced in her position as a cleaner following her redundancy.
4.5 The respondent denies that it discriminated against the complainant on the grounds of her disability and it submitted that the reason her employment was terminated was because of the fact that it could no longer provide the support necessary nor could it afford to employ additional staff to ensure her safety in the workplace.
5. Conclusions of the Equality Officer
5.1 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)....." Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows - "as between any 2 persons, ... that one is a person with a disability and the other is not or is a person with a different disability".
5.3 The issue for decision by me in this case, then, is whether or not the respondent discriminated against the complainant on grounds of disability in relation to the manner in which she was dismissed from her employment and whether or not it failed to provide her with reasonable accommodation within the meaning of section 16 of the Employment Equality Acts. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence of the parties at the Hearing.
5.4 In the present case it was not disputed between the parties that the complainant has epilepsy and I am therefore satisfied that she is a person with a disability within the meaning of section 2 of the Employment Equality Acts. It was accepted by both parties that the complainant had initially applied for a position as a care assistant but she was deemed unsuitable for this type of work by the respondent because of the nature of her disability. The respondent gave evidence that it decided to offer the complainant a position as a cleaner for "therapeutic purposes" on the basis that it was in a position to put an arrangement in place with its Nursing Staff who undertook to monitor the complainant in the event that she had an epileptic seizure whilst she was present on the workplace. The respondent accepted that it was made fully aware by the complainant that she had epilepsy prior to her commencement of employment as a cleaner in May, 2003.
5.5 I am satisfied that the complainant did not request the respondent to put this monitoring arrangement in place nor was she informed by the respondent that any such measures were being put in place or deemed necessary in order to facilitate her in the event that she had an epileptic seizure at work. Having regard to the evidence adduced, it is clear that the complainant had been certified medically fit to discharge her cleaning duties upon the commencement of her employment. In this regard, I note that it was accepted by the respondent that it received confirmation from the complainant's General Practitioner that she was medically fit to carry out the duties as a cleaner at that juncture. The respondent has not adduced any evidence from which I could conclude that the complainant's epilepsy impeded her or prevented her from carrying out the cleaning duties which she had been employed to perform during the course of her employment. Indeed, I note the respondent accepted in evidence that the complainant was very diligent in the discharge of her duties as a cleaner and it did not adduce any evidence to suggest that it encountered any difficulties or issues in relation to the manner in which she performed these duties.
5.6 The respondent gave evidence that it was prepared to retain the complainant in employment once it was satisfied that the Nursing Staff were in a position to monitor her whilst she was carrying out her duties as a cleaner. Based on the evidence adduced, it is clear that this situation changed in October, 2006 when the respondent received complaints from its Nursing Staff that they were no longer in a position to carry out this monitoring role in relation to the complainant. The respondent claimed that it had no other option but to terminate the complainant's employment following the receipt of these complaints as it could no longer provide the support necessary nor could it afford to employ the extra staff to ensure her safety in the workplace. The complainant was subsequently informed by the respondent on 16th July, 2007 that her employment was being terminated. In the circumstances, I am satisfied that the complainant was dismissed from her employment on the grounds of her disability i.e. because of her epilepsy and therefore, she was treated less favourably than a person who did not have a disability would have been treated. Accordingly I find that the complainant has succeeded in establishing a prima facie case of discrimination on the disability ground. In such circumstances, the burden of proof shifts to the respondent to rebut the inference of discrimination.
Respondent's Rebuttal
5.7 The respondent submitted that the complainant's employment was terminated because its Nursing Staff were no longer in a position to monitor and care for her whilst she was working in the nursing home and neither could it afford to employ an extra member of staff to carry out this duty. The respondent also submitted that a number of incidents occurred in the workplace involving the complainant in the months preceding the decision to terminate her employment, in terms of her epilepsy, which had raised serious concerns regarding her continued employment at the nursing home. The respondent gave evidence that it would have constituted a "health risk" to the complainant had it retained her in employment in the absence of the monitoring arrangement which had been put in place with the Nursing Staff.
5.8 There was a clear dispute in the evidence of the parties as to whether or not it was actually necessary to have this monitoring arrangement in place in the first instance. I note that the respondent failed to adduce direct evidence from any member of its Nursing Staff at the oral hearing in order to corroborate its contention regarding the difficulties that arose in relation to the monitoring arrangement. Having regard to the evidence adduced, I am not satisfied that the respondent has adduced sufficient evidence from which I could reasonably conclude that the complainant, as a person with a disability, would have been unable to carry out her duties as a cleaner in the absence of the monitoring arrangement. Neither has the respondent established to my satisfaction that the continued employment of the complainant in the absence of this monitoring arrangement would have presented a "health risk" either to the complainant or others within the organization. Notwithstanding the foregoing, I am satisfied that the respondent ultimately came to the conclusion in October, 2006 that the complainant, because of her epilepsy, was no longer capable of performing the duties in respect of which she had been employed.
5.9 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed. In the case of A Health and Fitness Club -v- A Worker the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:
"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.
5.10 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Dunne J. found that an employer that has failed to go through the aforementioned process orientated approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is serious enough to render the employee not fully capable of undertaking their duties under section 16(1) of the Acts.
5.11 In applying the aforementioned approach to the present complaint, I am of the view that there was an obligation upon the respondent, in the first instance, to inform the complainant at the outset of her employment that it was putting the monitoring arrangement in place with the Nursing Staff, if it had reasonably come to the conclusion that such a measure was necessary in order to facilitate the complainant, because of her disability, in carrying out her duties in the workplace. I am satisfied that the respondent clearly failed to adhere to its obligations in this regard, and I note that the respondent accepted that it did not discuss or inform the complainant about the existence of this arrangement either upon the commencement of her employment or at any subsequent stage.
5.12 Furthermore, I am of the view that there was also a clear obligation upon the respondent, when it became aware that the Nursing Staff were no longer prepared to facilitate this monitoring arrangement, to consult with the complainant and inform her of the concerns which it claims had arisen because of her disability, in terms of her ability to carry out her duties, and the resultant implications for her continued employment at the nursing home. Having regard to the evidence adduced, I am satisfied that the respondent totally failed to initiate or enter into any form of consultative process with the complainant when the issues arose in relation to the monitoring arrangement and when it came to the conclusion that the situation would have serious implications for her continued employment at the nursing home. It is clear that the respondent did not bring any of these issues to the attention of the complainant prior to taking the decision that it could no longer retain her in employment.
5.13 I am also satisfied that the respondent came to the conclusion that the complainant's position was no longer tenable in the absence of any form of professional medical advice or assessment from either her own medical advisors or from an independent source. It is clear from the evidence adduced that the respondent failed to explore or discuss with the complainant what, if any, special measures or facilities could have been put in place (within the meaning of section 16 of the Acts) in order to facilitate her to remain in her employment as a cleaner at that juncture. Rather than engaging with the complainant in this regard, I am satisfied that the respondent arbitrarily decided that it would have been necessary to employ another nurse (at a cost of approx. €30,000 per annum) in order to provide the level of monitoring and care that would have been required in order to retain the complainant in employment. Consequently, the complainant was not afforded any opportunity to participate at any level or influence in the decision making process that resulted in her dismissal. In doing so, the respondent clearly failed to embark upon the process orientated approach as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case.
5.14 Based on the evidence adduced, I am satisfied that the complainant was not afforded any prior indication or notice by the respondent that it was contemplating the termination of her employment on the grounds of her incapacity to carry out her duties. It is clear that the first indication the complainant was afforded that her dismissal was being contemplated by the respondent was when Ms. A, Managing Partner of the respondent, called to her home on 16th July, 2007 to inform her that her employment was being terminated. The respondent accepted in evidence that there wasn't a genuine redundancy situation within the nursing home at that juncture and it conceded that the reason the complainant was dismissed was because it had concluded that her disability presented a health and safety risk in the workplace.
5.15 Having regard to the foregoing, I am satisfied that the respondent completely failed to initiate or complete a process oriented approach when coming to the conclusion that the complainant was incapable, on the grounds of her disability, of performing the duties for which she had been employed and therefore it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the complainant was dismissed from her employment in a discriminatory manner by the respondent on the grounds of her disability. Accordingly, I find that the respondent has failed to rebut the inference of discrimination on the grounds of disability.
6. Decision
6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that the respondent discriminatorily dismissed the complainant on the grounds of her disability in terms of section 6(2)(g) of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts and also that it failed to provide her with reasonable accommodation within the meaning of section 16 of those Acts.
6.2 Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. The maximum compensation which can be awarded by this Tribunal in accordance with the provisions of section 82 of the Acts is 104 weeks' remuneration, which in the instant case would equate to an award of €14,560. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. Having taken the foregoing matters into consideration, I am of the view that an award of €12,500 is appropriate in the circumstances of the present case.
6.3 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that the respondent pay the complainant €12,500 in compensation for her discriminatory dismissal. This award is in compensation for the distress experienced by the complainant in relation to the above matters, and is not in the nature of pay, and therefore not subject to tax.
______________
Enda Murphy
Equality Officer
8th June, 2010