THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 229
PARTIES
A Worker
(represented by Mr Seamus Clarke, B.L., instructed by G. Jones & Co., Solicitors)
and
A Manufacturing Company
(represented by IBEC)
File Reference: EE/2009/287
Date of Issue: 17th November 2010
Table of Contents
Claim 3
Summary of the Complainant's Written Submission 3
Summary of the Respondent's Written Submission 5
Conclusions of the Equality Officer 6
Decision 14
Claim
1.1. The case concerns a claim by Mr A. that A Manufacturing Company discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of access to employment, promotion, training, conditions of employment and other matters.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 6 May 2009. A submission was received from the complainant on 12 October 2009. A submission was received from the respondent on 14 December 2009. On 3 November 2009, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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 this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 7 September 2010. Additional submissions were requested from the parties at the hearing and were received on 22 September 2010 from the complainant and on 14 October 2010 from the respondent. The final piece of correspondence related to the investigation was received on 10 November 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that since he lost sight in his left eye as a result of an accident some years ago, he is only partially sighted and therefore disabled within the meaning of the Acts. When he applied for employment with the respondent in 1994, he informed the respondent that he had a registered disability, but did not provide details of same to the respondent.
2.2. The complainant has been employed on a full-time basis by the respondent since 1994. The respondent manufactures floor coverings and tiles and the complainant has traditionally worked in the respondent's storage area for raw materials. From there, the raw materials are used in two different production lines. On both production lines, products pass a quality inspection for measurements, colour and general quality.
2.3. On foot of a flexibility agreement negotiated between the respondent and the complainant's union in 2004, randomly assigned workers would work on alternate production lines if necessary. Extra pay was secured as a compensation for this alteration in working conditions.
2.4. The complainant was one of the workers so assigned. He would work for three days a week in raw materials, and two days a week on the production line. Due to the limitations in his eyesight, he experienced difficulty with carrying out the quality control tasks, which were noticed by his colleagues and his supervisor. However, the complainant did his best to carry out these tasks, because he did not want to attract any unnecessary attention to his disability. This situation became worse from 2007, when the complainant was routinely required to work on a production line. In February 2008, the complainant decided to bring his difficulties to the attention of the respondent's Human Resource department, and also to advise them of the exact nature of his disability.
2.5. According to the complainant, the respondent's HR manager did not believe that he had a disability because of his ability to drive a car. The respondent continued to roster the complainant on the production line until 18 April 2008, when the complainant went on sick leave for work-related stress. The following week, the complainant was advised by HR that if he could not carry out the duties on the production line, he would be placed on a three-day week. The complainant contends that this amounts to penalisation on part of the respondent, for his disability.
2.6. A meeting was subsequently held between the complainant, his shop steward and management. It was agreed that the complainant would not work on production line 3, but the respondent determined that it would continue to roster the complainant on production line 2, which also involved quality control issues of the kind that caused the complainant difficulty due to his disability. While the respondent indicated that the complainant would not be asked to carry out inspections, this was not entered into the agreement between the parties.
2.7. Following this meeting, the complainant was informed by HR that his supervisor had complained that he had refused to carry out inspections on the production line, and was again informed that if he could not work on the production lines, he would have to be placed on a 3-day week. According to the complainant, the respondent offered no accommodation when requested to do so by his trade union. The complainant was sent to the company doctor but remained rostered for work on the production line.
3. Summary of the Respondent's Written Submission
3.1. The respondent accepts that the complainant has a disability. It submits that when it hired the complainant in 1994, the complainant stated on his application form that he had a registered disability, but did not elaborate on the nature of it or any specific needs that flowed from it. The respondent therefore submits that it was not until 19 March 2008 that it learned about the fact that the complainant's visual impairment was causing him difficulties with his inspection tasks.
3.2. According to the respondent, it agreed on 23 April 2008, on an interim basis, that the complainant would only be deployed in the Raw Material Store, and would not be required to carry out inspection duties when working on the production lines. The respondent wrote to the complainant's doctor on 24 April, requesting a referral to an eye specialist to have the extent of the complainant's disability assessed.
3.3. The complainant attended a consultant eye surgeon in the Mater Hospital on 6 October 2008. The consultant provided a report dated 15 October 2008, where he stated that in light of the complainant's disability, the complainant should be re-assigned his previous tasks in Raw Materials.
3.4. The respondent then met with the complainant and his union on 12 February 2009, and clarified that the complainant would only be assigned to production line work in the event of high absenteeism or other necessity. The respondent further suggested that in the event the complainant was required to work on the production line, his co-workers would be required to facilitate him and he would not have to carry out inspection work. According to the respondent, the complainant agreed to this arrangement and undertook to make the necessary arrangements with his co-workers in case he was assigned to production line work.
3.5. The respondent further submits that the complainant was re-imbursed for loss of pay and attendance allowance for attending his doctor.
3.6. The respondent denies discriminating against the complainant on the ground of disability, and submits that it has provided the complainant with reasonable accommodation for his disability within the meaning of the Acts.
4. Conclusions of the Equality Officer
4.1. The issue for decision in this case is whether the complainant was discriminated against on the ground of disability within the meaning of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.
4.3. At the beginning of the hearing, the representative of the complainant withdrew the complaints relating to access to employment and access to promotion.
4.4. The complainant lost sight in one eye as the result of serious accident, and the fact that the eye is destroyed and that he is visually impaired is evident when meeting him in person. Accordingly, I am satisfied that he is disabled within the meaning of S. 2(c) of the Acts. Furthermore, I cannot accept the respondent's argument that it was unaware of the exact nature of the complainant's disability. The complainant's shop steward, when giving evidence on behalf of the complainant at the hearing, stated that the complainant's disability was "bl*****g obvious". I concur with the witness in this regard.
4.5. The focus of my investigation therefore shifts on the provision of reasonable accommodation to the complainant when he requested it from the respondent.
4.6. There was no dispute that the complainant had discharged his duties satisfactorily for many years when he was working in the raw materials area of the respondent's production facility. The complainant explained that working the machinery that mixed and heated the raw materials involved handling bags of raw material and operating buttons and clearly visible digital dials (for example, to indicate temperature) that posed no problems for his vision. The complainant further stated that he had some degree of control of work speed in the raw materials area, which was not the case when working on the production line.
4.7. The complainant's difficulties arose when, as a result of a local collective agreement between the respondent and the complainant's union, all workers were trained to work on all aspects of the respondent's production in return for an allowance. This agreement was reached in 2004. During the training phase, the complainant noticed no difficulties in carrying out tasks that were related to his disability. He explained in his evidence that this was because the training was only done on two days each month. However, the complainant started to experience difficulties when he had to carry out certain tasks in a regular production situation. These involved the final inspection of the tiles prior to boxing, including checking up on their correct dimensions. As the complainant explained, this was very difficult for him to do since as a result of his impairment, he has no depth perception and therefore was not able to see when a stack of tiles was not flush on the edge.
4.8. The complainant approached the respondent HR manager, Ms A., in February 2008 to advise her of his problems. There is no dispute that Ms A. queried whether the complainant was disabled, since he was in a position to drive a car. The complainant also states that he felt he was threatened with being put on a three-day week if he didn't do inspection duties. However, the file note from Ms A., submitted as part of the complainant's evidence, does not fully support this - it would appear that Ms A. genuinely believed there was no more than three days of work per week if the complainant was put back into raw materials. In any event, these concerns did not come to pass. Initially, the complainant continued to work on the production line from February to April 2008, and subsequently went on sick leave due to the stress arising from the problems he experienced on the line due to his disability. On 24 April 2008, Ms A wrote to the complainant's GP, addressing both the issue of the complainant's work related stress and his disability. She also suggested referral to an eye specialist, to obtain further detailed information on the complainant's disability.
4.9. The complainant stated that from his return to work in May 2008 until February 2009, he worked in Raw Materials. On 6 October 2008, he was reviewed by an eye specialist, Professor K., who issued a letter to the complainant with a recommendation that the complainant be reassigned to his previous work tasks in Raw Materials (where the complainant was in fact working at the material time).
4.10. In February 2009, a meeting regarding the complainant's disability and its possible accommodation took place between the complainant, the complainant's shop steward Mr S., the complainant's union official Mr. B., Ms. A and the respondent's director. According to the complainant, Ms A. said that the company was willing to accommodate him if his fellow workers were. However, the complainant stated at the hearing that he did not want his disability communicated to his fellow workers, and stated that therefore, at the meeting, he suggested to the respondent that he would do tasks on the production line that would not involve inspection, and that the respondent should re-arrange duties along these lines without giving background information to his co-workers. He felt that an open discussion of his disability with his co-workers would lessen his standing among them, and was sensitive to this possibility. However, the complainant stated that at the meeting, he was asked to communicate this to his fellow workers and to ask them to accommodate him. The complainant took issue with this request, as he felt it should not be left to himself to sort this matter with his colleagues. Finally, the complainant was left with an understanding that he would be asked to do inspection tasks only in extenuating circumstances, in a "last man standing" situation, and that it was not expected that this would ever happen.
4.11. The complainant's evidence regarding the meeting was essentially confirmed by Ms A., including the fact that it was decided that it should be the complainant who should communicate his accommodation needs to his co-workers. From the entirety of the evidence relating to the meeting, I note that while the complainant's wish that his disability should not be discussed with his co-workers may not have been realistic, given its obvious nature, there was no attempt from the respondent to respond to these concerns or allay them in any way. I find that arranging the details of his reasonable accommodation was simply left to the complainant.
4.12. Shortly after this meeting, on 11 March 2009, the complainant was asked to do inspection duties while other colleagues were taking their tea break. The complainant stated that he told the shift leader that the agreement was that he should do inspections only in extenuating circumstances, and that he felt the agreement was breached here. He then proceeded to carry out the work demanded of him under protest. According to both the complainant and the shop steward, Mr. S., there would have been a number of other colleagues available to carry out these duties, rather than ask the complainant to do them. The complainant went to see a solicitor about the matter on the next day, and went out on sick leave for a couple of weeks. He confirmed that he has worked in Raw Materials since March 2009, and that the occasion on which he had been asked to work on inspection duties was a single incident.
4.13. During the hearing of the complaint, I also asked Ms A. what led to the delay in agreeing accommodation for the complainant, after the consultant's report had been received. According to Ms A., it was the lack of availability of the complainant's senior union official, Mr B., which delayed matters. Ms A. stated that the respondent company was a very union dominated workplace, and that all matters that a worker chose to process through his union had to be dealt with by way of agreed proceedings. This was confirmed by the complainant's shop steward, Mr S..
4.14. In investigating the case on hand, I find it useful to refer to DEC-E2008-023, Mr A. v. A Government Department, since it contains a fairly detailed summary of the jurisprudence of the Labour Court in relation to employers' responsibilities with regard to reasonable accommodation. I advised the parties of this intent and gave them an opportunity to submit additional observations on that decision after the hearing of the instant case.
4.15. In DEC-E2008-023, I reviewed the Labour Court in A Government Department v. A Worker [ADE0516], in which the Court examined the changes in the law relating to disability brought about by the Equality Act 2004, and held that
The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person's disability. [...]
The scope of an employer's duty is determined by what is necessary and reasonable in the circumstances. It may, as in the instant case, involve relieving the person with a disability from the requirement to undertake certain work which is beyond his or her capacity. [emphasis added]
4.16. Furthermore, I had regard to the earlier decision of the Labour Court in An Employer v. A Worker [ADE048], where the Court specifically held that "adjusting the person's attendance hours or to allow them to work partially from home" were part of the provision of reasonable accommodation, in addition to the relieving of the disabled employee "of certain tasks which other doing similar work are expected to perform."
4.17. The Court further held, in the same decision, that
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 the disabled employee. [...] This necessarily involves discussing the matter with the employee or their medical advisors. [emphasis added].
4.18. In DEC-E2008-023, Mr A. v. A Government Department, I also made a finding in general terms "that the re-deployment to a work area in which an employee has worked before falls within general standards of reasonableness, provided that duties and responsibilities are commensurate with the employee's qualifications, experience and abilities at the time of re-deployment and terms and conditions of employment are not affected save for the flexibility afforded to employers pursuant to S. 35 of the Acts."
4.19. The representative of the complainant, in his submission, emphasised the law on the pro-active nature of the respondent's obligations in making reasonable accommodation for the complainant. He also highlighted the fact, that in the complainant's opinion, the complainant should not have been asked to perform work which in the opinion of his consultant, he should not perform.
4.20. The representative of the respondent, in his submission, stressed the finding that a worker can be deployed to an area for which he is qualified, and to work which he is able to perform. In the opinion of the respondent, the complainant was fully trained to perform the work on the production line and had previously performed it without complaint. The submission also stressed that the complainant was asked only once to work on the production line after bringing his disability to the attention of the respondent.
4.21. In applying the law set out by the Labour Court to the case on hand, I find that the complainant's consultant is unequivocal in his recommendation that the complainant should not be deployed on the production line duties that he is not in a position to perform properly due to his disability. I therefore find that reasonable accommodation of the complainant, in line with his consultant's recommendation, consists of deploying him in his previous work area in Raw Materials, as has indeed been the case since March 2009.
4.22. I also find that in overall terms, the respondent has been somewhat lacking in proactivity in addressing the complainant's problems. While I accept that the strong union representation in the respondent company also contributed to delays, the respondent ought to have pressed more energetically for a solution. I also find it was not appropriate to convey a notion to the complainant that he could be accommodated if his fellow workers were agreeable to it, or to leave the complainant with the burden of arranging his reasonable accommodation, which the Acts define as the obligation of an employer, after all. In this respect, I find that the respondent has fallen short of its obligations towards the complainant under S. 16(3) of the Acts, as they have been clarified by the findings of the Labour Court over the years.
4.23. On the other hand, I find it important to note that at all material times, and at the time of the hearing of the complaint, the complainant was in receipt of the allowance which the respondent had agreed with the union for availability for flexible working, regardless of the fact that the complainant was not really in a position to carry out tasks associated with this agreement. There was no dispute between the parties with regard to this fact. However, pursuant to the provisions of S. 35 of the Acts, the respondent would not have been obliged to pay this allowance to the complainant.
4.24. Section 35(1) of the Acts states that
Nothing in this Part or in Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could be reasonably expected to be done, during that period by an employee without the disability.
4.25. Since the allowance was negotiated between the union and management in 2004 in exchange for the performance of specific tasks which the complainant is unable to perform on the ground of his disability, I find that in continuing the allowance for long stretches of time during which the complainant was not asked to perform the associated work tasks, the respondent conferred a benefit over and above its legal obligations on the complainant. The total amount of the allowance paid to the complainant up to the date of the hearing of the complaint amounts to €11,600, of which €4976 relate to the years 2008, 2009 and 2010, when the complainant was mostly or exclusively working in raw materials.
4.26. I also note that, as the respondent submits, it was only one single incident where the complainant was asked to work on the production line following the meeting in February 2009. These are important facts in determining the respondent's liability in the case on hand.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did discriminate against the complainant in terms of not providing reasonable accommodation of the complainant's disability in a timely, proactive and appropriate manner.
5.2. In determining the respondent's liability towards the complainant, this must be balanced with the respondent's voluntary payment of an allowance to the complainant, over and above its obligations specified in S. 35 of the Acts, even when the complainant's reasonable accommodation was implemented, and also the fact that the respondent's conduct did not cause the complainant major detriment. However, S. 79(6)(a) of the Acts obliges me, in cases where discrimination is found to have occurred, to provide redress in accordance with S. 82 of the Acts. Accordingly, I hereby order pursuant to S. 82 of the Acts, that the respondent pay the complainant the sum of €1000 for the effects of the discrimination experienced. This award is not in the nature of pay and is therefore not subject to tax.
______________________
Stephen Bonnlander
Equality Officer
17 November 2010