THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision - DEC-E2011-259
PARTIES
A Complainant
and
A Charitable Organisation
(represented by IBEC)
File Reference: EE/2008/740
Date of Issue: 22nd December, 2011
Keywords: Employment Equality Acts, 1998 to 2008 - Section 6 - Access to Employment - Disability - Reasonable Accommodation - Prima facie case - Respondent rebutted the inference of discrimination
1. Dispute
1.1 This case concerns a complaint by the complainant that she was subjected to discrimination in relation to access to employment 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.
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 10 November, 2008. In accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the cases on 22 September, 2011 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 complainant on 1 April, 2009 and from the respondent on 14 May, 2009. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 18 October, 2011.
3. Summary of the Complainant's case
3.1 The complainant applied to the respondent for the position of relief care worker in February, 2008 after this position was advertised on the respondent's website. The complainant attended an interview for the position and she was notified by the respondent on 1 April, 2008 that she had been provisionally selected for inclusion on a panel for appointment subject to the completion of a medical examination. The complainant attended a medical examination with the respondent's Occupational Health Physician on 3 June, 2008 and she claims that upon the conclusion of this medical examination she was informed by the doctor (Dr. A) that "all was well" and that he "wished me luck in the new job". The complainant stated that she didn't receive any further contact from the respondent regarding her appointment to the position during the four week period after completing the medical examination so she contacted the respondent in early July, 2008 and spoke to Ms. B (one of the members of the interview board). The complainant stated that she was informed by Ms. B that she would look into the matter and revert to her later that day. The complainant stated that Ms. B eventually reverted to her and informed her that "something had come up with her medical" and that the respondent would not be proceeding to employ her.
3.2 The complainant stated that she was totally shocked and upset after hearing that she would not be offered employment by the respondent especially in light of the fact that she had stopped looking for other employment after receiving confirmation from the respondent in April, 2008 that she had been successful in her application for the position of relief care worker. The complainant stated that after making numerous telephone calls to the respondent's Human Resources Department she eventually spoke to Ms. C, HR Officer, regarding the matter. The complainant stated that Ms. C informed her that the offer of employment was being withdrawn for medical reasons but she would not elaborate any further on the matter and insisted that an employee/potential employee's medical details were confidential and could not be discussed with anybody. The complainant subsequently spoke to Dr. A (the doctor who had carried out the medical examination for the position) regarding this matter and he confirmed that there was nothing in the medical examination which he had conducted that had raised any cause for concern regarding her fitness for the position of relief care worker.
3.3 The complainant contacted the respondent again regarding the matter and informed Ms. C, HR Officer, that Dr. A was of the opinion that she was medically fit for the position. The complainant stated that she was informed by Ms. C that it was two other doctors (namely, Dr. D and Dr. E) who had declared her medically unfit for the position and had recommended that she should be restricted from lifting weights in excess of 15 kg due to her medical condition. The complainant stated that she was totally perplexed by the situation as she had been lead to believe that it was Dr. A who had certified her medically unfit for the position and she was confused as to nature of the involvement that Dr. D and Dr. E had in relation to the decision. The complainant stated that she sought an explanation from Ms. C regarding the matter and she subsequently received a letter from the respondent on 14 August, 2008. It was stated in this letter that Company X was the Occupational Health Consultancy contracted to manage the respondent's occupational health issues and that the medical questionnaire which the complainant completed during the course of her medical examination with Dr. A was sent directly to Company X in order for the Medical Director (Dr. D) to make a decision regarding her fitness for the position of relief care worker. The letter stated that based on the information disclosed in this confidential questionnaire the Medical Director (Dr. D) had declared her medically unfit to carry out the duties that would be required for the position.
3.4 The complainant subsequently contacted Dr. E (at Company X) and he informed her that he had assessed the medical report submitted by Dr. A. The complainant stated that Dr. E informed her that he had certified her medically unfit to carry out the duties required of a relief care worker because he had concluded that her medical condition, Chronic Obstructive Pulmonary Disease (COPD), was unstable. The complainant stated that she sought clarification from Dr. E regarding the reasons for the imposition upon her of a lifting restriction of 15 kg; however, he was not willing to provide an explanation in relation to this issue. The complainant stated that she had previously worked for nine years in the A&E Department of an English hospital and that her COPD had not caused her any difficulties in the performance of her duties. The complainant stated that Dr. E asked her if she was willing to permit him to discuss this issue with her General Practitioner and he indicated that he would certify her medically fit for the position should her General Practitioner confirm that her COPD was now stable. The complainant stated that she subsequently contacted Ms. C, HR Officer, and informed her that she felt that the respondent was discriminating against her on the grounds of her disability in relation to the decision to withdraw the offer of employment.
3.5 The complainant subsequently spoke to her General Practitioner regarding the matter and he forwarded confirmation to Dr. E that her COPD was stable. The complainant stated that she received a letter from the respondent on 11 November, 2008 in which it was stated that Dr. E had confirmed her COPD was now stable following consultation with her General Practitioner. The respondent informed her in this letter that it was now in a position to offer her employment in the position of relief care worker; however, the complainant stated that she had to refuse the offer of employment as she had secured alternative employment at that juncture. The complainant claims that there was a total failure by the respondent to engage with her in a meaningful way when she sought clarification regarding the reasons why she had been initially deemed medically unfit for the position and that it also failed to explore the possibility of providing reasonable accommodation to her after it decided to withdraw the offer of employment. The complainant claims that this treatment amounts to discrimination on the grounds of her disability contrary to the Employment Equality Acts.
4. Summary of the Respondent's case
4.1 The respondent submitted that it provides a range of supported accommodation, respite and other services to adults with physical disabilities and that it currently operates 18 centres and a range of community based services around Ireland. The respondent submitted that the complainant attended an interview on 21 March, 2008 for the position of relief care worker at one of its centres. The purpose of the interviews for this role was to select a few candidates to be on a panel of relief workers i.e. the next time a care worker was required for that particular centre, the most successful candidate on the relief panel would be contacted first to ascertain their availability to fill the vacancy. The complainant was successful at interview and received a letter of conditional offer to be included on the panel and she was informed that this offer was subject to her passing a medical examination.
4.2 The respondent submitted that the complainant attended Dr. A on 3 June, 2008 for a medical examination and his medical report was forwarded to its Occupational Health Consultants (Company X) where it was reviewed by Dr. D. The respondent submitted that Dr. D formed the opinion that the complainant would not be in a position to cope with all of the tasks that might be demanded of her as a care worker and he notified the respondent to this effect by letter on 6 June, 2008. The respondent submitted that it subsequently informed the complainant in early July, 2008 that it would not be in a position to continue with the recruitment process and the matter was passed to Ms. C, HR Officer, who spoke with the complainant and confirmed that for medical confidentiality reasons she was not privy to the details of the complainant's medical examination. However, Ms. C assured the complainant that she would seek clarification from its Occupational Health Consultants (Company X) regarding the medical examination.
4.3 The respondent submitted that Ms. C requested clarification regarding the situation it subsequently received a letter from Dr. E (Occupational Health Physician at Company X) on 11 July, 2008 who confirmed that the complainant was not medically fit for all aspects of work as a relief care worker and he also indicated that because of her underlying medical condition she should not be required to lift anything more than 15 kg. The respondent submitted that Ms. C followed this up with Dr. E who suggested that the complainant write to him and he would explain why she was not fully fit and explain to her that no clinical information could be given to Ms. C. The respondent submitted that Ms. C wrote to the complainant on 14 August, 2008 and informed her that she had been declared medically unfit to carry out the duties that would be required of her in the position and therefore, it would not be in a position to offer her employment. The respondent submitted that this letter also included details the name of the doctor (Dr. E) who the complainant should contact (in Company X) with regard to obtaining her medical report.
4.4 The respondent submitted that Dr. E subsequently spoke to the complainant and explained the reason why she had not passed the medical examination. Dr. E suggested to the complainant that he could contact her General Practitioner with her permission in order to assess the stability of her underlying medical condition. The respondent submitted that it subsequently received an updated report from Dr. E on 24 October, 2008 regarding the complainant's fitness to perform the duties of relief care worker. In this letter Dr. E stated that "he had received correspondence from her [the complainant's] general practitioner and I am happy from this correspondence that [the complainant's] underlying medical condition is well controlled and in my opinion, should not prevent her from carrying out all aspects of the work demanded off her as a care worker". The respondent submitted that following the receipt of this new medical report declaring the complainant fit for the job, it wrote to her on 11 November, 2008 to inform her that she would be included on the relief care worker panel for that particular area. The complainant was provided with a copy of Dr. E's updated report and revised letter of inclusion on the relief care worker panel. The respondent subsequently received an e-mail from the complainant on 17 November, 2008 to confirm that she would not be taking up the offer of employment as she had obtained alternative employment elsewhere.
Legal Submissions
4.5 The respondent denies that the complainant was subjected to discrimination on the grounds of her disability in terms of the decision not to offer her employment as a relief care worker. The respondent submitted, in the first instance, that it was not aware of the complainant's disability at the time it made the decision not to hire her and accordingly, there could be no connection between her disability and the decision not to hire her. The respondent submitted that whilst it was informed by its Occupational Health Consultants (Company X) that the complainant was not fit to carry out the duties of a relief care worker due to a medical condition, it was never informed that she had a disability or of the nature of her disability. The respondent submitted that an illness is clearly different from a disability and it disputed that the complainant's medical condition constitutes a disability within the meaning of section 2 of the Acts.
4.6 The respondent submitted that it was at all times guided by medical advice in terms of its decision not to offer the complainant employment as a relief care worker. It submitted that it is generally accepted that employers are entitled to rely upon medical advice to assess whether a candidate is fit to carry out the work for which he/she will be employed to do. The respondent submitted that it would not be considered respectful nor is it a legal obligation for an employer to have to look behind each medical report that it receives on foot of a pre-employment medical examination. The respondent submitted that it accepted the initial medical report regarding the complainant's unfitness to work in good faith and, on receipt of a query from her, it subsequently investigated that query to the extent that the matter was resolved and she was ultimately offered a position on the panel.
4.7 The respondent also denies that it failed to provide the complainant with reasonable accommodation within the meaning of the Acts. The respondent submitted that an integral part of the duties of a relief care worker involves manual handling, for which the complainant was determined medically unfit to do on account of the 15kg lifting restriction. The respondent contends that it could not accommodate the complainant by providing duties that did not involve manual handling or lifting that would exceed the restrictions set forth by its Occupational Health Consultants. The respondent submitted that it does not have any relief panel roles that do not require manual handling and lifting and due to the size of its operations in that particular area and the limited number of staff on duty at any one time, every staff member and relief panel worker must be capable of manual handling and lifting. The respondent submitted that most services users in the respondent's facility require a high degree of assistance with movement and therefore, the requirement of relief panel workers to be able to lift is always critical where an urgent situation could arise at any time such as a service user needing assistance after falling or requiring assistance to use the toilet.
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".
"Disability" is defined in section 2 as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
Issue whether complainant had a disability with the meaning of the Acts
5.3 The respondent has argued that it was not aware that the complainant had a disability when it informed her of the decision that it would not be in a position to offer her employment as a relief care worker. The respondent claims that its Occupational Health Consultants (i.e. Company X) had informed it that the complainant was unfit to perform the duties required of the position due to an underlying medical condition. However, it claims that it was not aware of the precise nature of this underlying medical condition at that juncture or indeed, if this medical condition constituted a disability. The respondent has argued, therefore, that the initial decision not to include her on the relief care worker panel was not connected to her disability.
5.4 In considering this issue, I accept that the respondent was not aware of the precise nature of the complainant's disability (i.e. Chronic Obstructive Pulmonary Disease (COPD)) when it informed her on 14 August, 2008 that it would not be in a position to offer her employment. However, notwithstanding the foregoing, I note that the respondent made this decision on the basis of information obtained from its Occupational Health Consultants who had confirmed that the complainant was medically unfit to carry out the duties required of the position. In this regard, I note that the respondent was informed by its Occupational Health Consultants (in a letter dated 11 July, 2008 from Dr. E) that the complainant "would not be medically fit for all aspects of work as a relief care worker" and "because of her underlying medical condition the restrictions that require to be put in place, this lady should not be required to lift anything more than 15kg in weight". The definition of "disability" in section 2 of the Acts includes the "malfunction of a part of a person's body". I am of the view that it would not have been unreasonable for any prospective employer, upon obtaining the type of information which the respondent had obtained regarding the complainant's medical condition, to make the assumption that the reason for the implementation of a lifting restriction was directly attributable to a "malfunction" of a part of her body. In the circumstances, I am satisfied that the respondent imputed a disability on the complainant when it made the initial decision not to include her on the panel for employment as a relief care worker. Accordingly, I find that the complainant is covered by the disability ground within the meaning of section 2(1) of the Acts in the circumstances of the present case.
Establishing a prima facie case on the disability ground
5.5 The next issue that I must consider is whether or not the complainant was subjected to discrimination on the grounds of disability in terms of the manner in which it dealt with her application for employment as a relief care worker. It was not in dispute that the respondent informed the complainant on 14 August, 2008 that it would not be in a position to offer her employment as a relief care worker on the basis that she had been deemed medically unfit to carry out the duties required of the position. As stated above, I am satisfied that this decision was taken on the basis that the respondent had imputed a disability on the complainant on foot of the information that it had obtained from the independent medical consultants which it had engaged to carry out a pre-employment medical examination on her. Accordingly, I find that the facts give rise to a presumption of discrimination and the complainant has established a prima facie case of discrimination on the disability ground.
Respondent's Rebuttal
5.6 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 An Employer -v- A Worker the Labour Court sets out the approach which would allow an employer to dismiss an employee with a disability in accordance with section 16(1) of the Acts where it stated:
"Prima facie, subsection 1(b) of this section allows an employer to treat a person with a disability less favourably than others. An applicant for employment who has a disability may be turned down if they are not fully capable of carrying out all the duties attached to the job for which the applied .... Moreover, in certain circumstances, the contract of employment may come to an end by operation of law due to frustration.
Subsection 1(b) is, however, qualified by subsection (3). This subsection provides that a person with a disability is to be regarded as fully capable and fully competent to undertake the duties of a post if, with the benefit of special treatment, they would be fully capable and fully competent to do so. The subsection goes on to impose a duty on employers, where it is reasonable to do so, to provide special treatment for persons with disabilities, or to provide them with special facilities, so as to render them fully competent and capable of doing the job required of them.
.........
The duty placed on an employer by section 16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.
This necessarily involves discussing the matter with the employee, or their medical advisors. It also places an obligation on the employer to adequately consider any reasonable proposals put forward by or on behalf of the employee. (see the Determination of this Court in A Health and Fitness Club and A Worker (Determination 037) which was upheld by Her Honour Judge Dunne (as she then was)on appeal to the Circuit Court)".
5.7 In this case the Labour Court interpreted section 16(1) of the 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 before decisions are taken which may be to the detriment of a disabled person/employee. I note that the facts in the case law referred to above relates to an employee/employer situation whereas the facts in the present case relate to a claim in respect of access to employment. However, I am of the view that the principles enunciated therein regarding the interpretation of section 16(1) of the Acts can also be applied to the circumstances of the present case.
5.8 In the present case, the respondent based its initial decision not to offer the complainant employment as a relief care worker on the medical report that it had received from the independent Occupational Health Consultants which it had engaged to carry out a pre-employment medical examination on the complainant. I have noted the evidence of Dr. E, the independent Occupational Health Physician, who carried out the medical assessment regarding the complainant's fitness to undertake the duties attached to the job. I accept Dr. E's evidence that he carried out an objective assessment of the complainant's medical condition based on the information she had completed on the confidential medical questionnaire during the course of her initial medical examination with Dr. A.
5.9 This medical report informed the respondent that the complainant "would not be medically fit for all aspects of work as a relief care worker" and "because of her underlying medical condition the restrictions that require to be put in place, this lady should not be required to lift anything more than 15kg in weight". I have taken note of the job description for a relief care worker and it is clear that the manual handling and lifting of patients are both integral and essential components of the job. I accept the respondent's evidence that it gave due consideration at that juncture to the possibility of putting special measures in place which would have facilitated the complainant in discharging the duties connected to the position. However, having regard to the nature of the lifting restriction which had been imposed upon the complainant, I accept the respondent's evidence that it was not possible, in the circumstances, to put any special measures or facilities in place which would have enabled her to carry out the essential manual handling and lifting aspects of the job. As a consequence, the respondent took the view that the complainant was not fully capable of carrying out all of the duties attached to the job for which she had applied. In doing so, it is clear that the respondent was acting in accordance with the independent medical advice which it had obtained in relation to the complainant's fitness to undertake the required duties connected to the position when it informed her on 14 August, 2008 that it could not offer her employment.
5.10 It is clear that the complainant did not concur with the medical advice upon which the respondent had based its initial decision not to offer her employment as a relief care worker. The complainant accepted that she had a disability (i.e. Chronic Obstructive Pulmonary Disease) at that juncture; however, she claimed that her medical condition was stable and that it would not have had the imputed impact on her ability to undertake the required duties of the position. The complainant brought these concerns to the attention of the respondent and sought further clarification regarding the reasons why the respondent's medical consultants had come to the conclusion that she was unfit to carry out the duties required of the position. I accept the respondent's evidence that it was not privy at that juncture to the confidential medical information upon which its medical consultants had based the decision to declare her medically unfit for the job. However, based on the evidence adduced, I am satisfied that the respondent actively engaged with both the complainant and its medical consultants when the complainant had raised her concerns in relation to the nature of the initial medical advice.
5.11 It is clear that the process of engagement which ensued resulted in the respondent's medical consultants reviewing their original medical report after it had obtained confirmation from the complainant's General Practitioner that her disability was stable and would therefore, not have any adverse impact on her ability to carry out the duties required of the position. I note that the respondent acted upon the updated medical report from its medical consultants and it subsequently notified the complainant on 11 November, 2008 that it would be in a position to offer her employment as a relief care worker. In doing so, I am satisfied that the respondent engaged in a process of consultation with the complainant and its medical consultants which resulted in a reversal of its initial decision that she would not be fully capable of undertaking the duties attached to the position. Having regard to the foregoing, I am satisfied that the respondent has rebutted the inference of discrimination. Accordingly, I find that the respondent did not discriminate against the complainant on the grounds of her disability contrary to section 16 of the Acts in terms of the manner in which it dealt with her application for employment as a relief care worker.
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 did not discriminate against 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 16 of those Acts. Accordingly, I find in favour of the respondent in this case.
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Enda Murphy
Equality Officer
22nd December, 2011