THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 111
PARTIES
Ms. Lynda Sullivan
(Represented by P.J. O'Driscolls, Solicitors)
and
Murphy's Stores (Berehaven) Limited
(Represented by Coakley Moloney, Solicitors)
File Reference: EE/2008/059
Date of Issue: 13th June, 2011
File references: EE/2008/059 - DEC-E2011- 111
Keywords: Employment Equality Acts 1998-2008 - Sections 6 and 8 - Discriminatory Treatment - Disability - Conditions of Employment - Failure to provide reasonable accommodation
1. Dispute
1.1 This dispute concerns a claim by Ms. Lynda Sullivan that she was discriminated against by Murphy's Stores (Berehaven) Limited 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.
2. Delegation of the complaint
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on the 1st February 2008. A submission was received from the complainant on the 24th October 2008 and from the respondent on the 18th December 2008. On the 25th November 2009, in accordance with her powers under Section 75 of the Acts, the Director delegated the case to me, James Kelly, 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 hearing of the case on 14th January 2011, where both parties were in attendance. The last correspondence on the matter was received on the 9th March, 2011.
3. Summary of the Complainants' case
3.1 The complainant claims that she was employed as a Sales Assistant with the respondent since the 27th January 2001. She claims that she had a few different roles with the respondent in that time and since 2003 she was on "check-out duties", which included serving customers, working at the cash tills, packing shopping bags, mopping floors, general cleaning around the counters and so on. She claims that on the 19th January 2005 she had to leave work because of consistent back pain and after various medical assessments and physiotherapy she finally had to have surgery on a prolapsed disc on her back on the 12th January 2006.
3.2 The complainant claims that on the 8th August 2006 she wrote to the respondent with a letter from her Consultant Orthopaedic Surgeon which outlined the her medical situation to date and said, "She is now fit to resume her work on a part time basis initially. She would be fit for her normal work practice except for lifting heavy bags". The respondent's letter in reply said that it was "not in a position to take you back if there is a risk of exasperation of your condition whilst in my employment", it went on to say that it required "clarity in great detail the exact duties which you can undertake" and it will be seeking that from Dr. A, her Consultant Orthopaedic Surgeon. A copy of the respondent's letter to Dr. A was sent to Ms. Sullivan. The complainant claims that her Consultant replied to the respondent on the 5th September 2006 where he said that "considering the questions that you have outlined I think that you need to have her job conditions assessed by an occupational physician". Dr. A also provided a medical report dated 22nd October 2006 where his final summary and prognosis was "She has been advised to return to work to all her normal duties in a graduated fashion".
3.3 The complainant agrees that an appointment was arranged for her by the respondent to attend a General Practitioner for the 16th November 2006. However, she claims that this appointment was arranged in relation to a separate incident that was ongoing with the respondent regarding a personal injury claim dating back to 2003 and she was not informed that the appointment was to be used to assess whether she was fit to return to work. She claims she was not told that and did not get a copy of the GP's medical report. Notwithstanding her position in relation to the aforesaid, she highlighted to me the conclusion of the report where he wrote "I would feel that her back has improved but that it is not likely to stand up to the full range of duties that might be assigned to her. The only duties that she could undertake and feel confident and safe in doing would be checkout type duties."
3.4 The complainant claims that she heard nothing back from the respondent so on the 16th January 2007 she again wrote to it reiterating that she was willing to return to work on a part time basis initially and increasing to full time. She agrees that she received a reply from the respondent stating that as she was not capable of various lifting tasks as part of her day to day duties it could not offer her re-employment, it went on to say that "When you are medically fit both by your own doctor and the company doctor we will be in a position to re-consider your re-employment at that stage". She agrees that she received a letter from the respondent dated 5th March 2007 requesting her to forward "a return to work date" and putting her on notice that her post would be terminated on failing to provide a date "in the immediate future". She claims that she replied by again stating that she was able and fit to return to work on a part time basis at first and again referred to Dr. A's previous letter to the respondent where he said that she should be assigned light duties at first and progress from there. She received a reply from the respondent dated 3rd April 2007, which stated that it was "not possible to assign light duties" and that it would reconsider re-employment "when you have been certified medically fit by both your own doctor and company doctor to fulfil your normal role." The complainant agrees that she received a similar letter dated 19th September 2007. She claims that she replied stating that she would be seeking a medical report on the matter.
3.5 The complainant claims that she did not know what to do next and felt that the respondent was "putting barriers in front of her, preventing her return to work". She, on instruction from her solicitor, decided to have a medical report commissioned from a Dr. B, Consultant Occupational Physician and sent this report to the respondent on the 28th November 2007, claiming that the medical evidence following assessment confirmed that she was medically fit to return to work. The summary and opinion of Dr. B was "that this lady should be able to return to work but will need reasonable accommodation, which may include avoidance of the particular precipitating activities mentioned, minimising manual handling of loads...." The report was sent by Ms. Sullivan solicitor and indicated that she was fit to return to work as of the 10th December 2007.
3.6 Dr. B was present at the hearing and stated that from his professional experience people, with the same injury as Ms. Sullivan, usually recovers quite quickly after the surgery and usually are back to work within 3 months. He claims that they frequently return initially on a phased base depending on the job demands, and building on that up to full functions without any restrictions in time.
3.7 The complainant claims that on the 19th December 2007 she received a phone call from Ms. C, Store Manager, inviting her to a meeting the following day, which she attended with her father. She claims that she expected that the meeting was to facilitate her return to work. She claims that they discussed various work place scenarios and asked her for her reaction should different situations arose. She claims that at the end of the meeting she was told by Ms. C that she would get an opinion on Dr. B's report and she would be in contact with her. The complainant denied some of the content of the minutes of the meeting which were submitted in evidence as part of the respondent's submission. She claims that they were not a true reflection of what she claims that she could and could not do. The complainant contends that the respondent was in effect "dragging its feet" on getting her back to work and the final efforts and contacts were "too little too late".
4. Summary of the Respondent's case
4.1 The respondent claims that it is a small retailer operating in Berehaven, Co. Cork, which employs approximately 55 people. It does agree that Ms. Sullivan was employed with it until she left work due to ill health on the January 2005. It agrees that it received regular certificates from her doctor to cover her absence from work on sick leave. It wholly denies that it discriminated against the complainant on the grounds alleged.
4.2 The respondent claims that Ms. Sullivan had a very high number of sick days before she left work in January 2005. It also informed the Tribunal that she has a personal injuries claim against the respondent for an accident that occurred at work which had been settled.
4.3 The respondent claims that it met with the complainant on many occasions to check on her as a matter of course after her back surgery and she was told that her job was safe until she was fit and ready to return to work. Documentary evidence of contemporaneous notes taken at the time were presented in evidence to support this claim. The respondent agrees that it received correspondence from a Consultant Orthopaedic Surgeon in 8th August 2006 and on foot of his reply of 5th September 2006 (as outlined in paragraph 3.2 above) the complainant was sent to a General Practitioner for assessment. The General Practitioner report dated 25th September 2006 said "..[Ms. Sullivan's back] is not likely to stand up to the full range of duties that might be assigned to her. The only duties that she could undertake and feel confident and safe in doing would be checkout type duties ...". The respondent agrees that this report was not copied to the complainant at the time.
4.4 The respondent acknowledges that it did receive and issued the other correspondence referenced in paragraphs 3.4 and 3.5 above. It agrees that in these letters it said that it was "not possible to assign light duties only, to you whilst working the supermarket" and it acknowledges that it asked the complainant to provide it with a return to work date of when she would be medically fit by her doctor and the company doctor so that she could "fulfil your normal role in the supermarket". It claims that a considerable period of time lapsed while it waited for the complainant to return to it with the suitable information it required to allow her return to employment.
4.5 The respondent acknowledges receipt of the medical report from Dr. B, Consultant Occupational Physician for the complainant, undercover of Ms. Sullivan's solicitor's letter as outlined in paragraph 3.5 above. It claims that it arranged to meet with the complainant on the 20th December 2007 to determine what the complainant could do. It claims that at this meeting the respondent's Manager Ms. C and its HR Manager Ms. D discussed what reasonable accommodation it could provide for the complainant. It claims that Ms. Sullivan gave a long list of things she could not do, such as, "no mopping" and "she could not lift bags to cars". It claims that it was agreed that the respondent would meet with an expert HR consultant to assess what could be done. It claims that to its surprise it received a letter from the complainant's solicitor threatening legal action against it for not allowing Ms. Sullivan back to work. It claims that it tried to advise the complainant's solicitor that it had met with her and a course of action was in place to get her back to work. However, it then received notice of the complaint before the Equality Tribunal and all its reasonable efforts to try to meet and resolve the matter after that were refused by the complainant's side. It further claims that the numerous limitations placed by the complainant on any return to work highlighted that she was not fully competent or fully capable to undertake the duties that she was contracted to perform and therefore would rely on the provisions of Section 16 of the Acts.
4.6 The respondent also claims that the date mentioned as the most recent occurrence of a discriminatory act on the referral form EE1, namely, 27th November 2007, is a fabricated date, as it claims that there was no discriminatory action on this date and the case should be struck out accordingly.
5. Conclusions of the Equality Officer
5.1 The issue for decision is whether the complainant was discriminated against on the ground of her disability in relation to re-deployment with the respondent. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties. The medical reports confirm that the complainant had a back problem requiring back surgery and this was accepted by the respondent. I therefore find that the complainant has a disability within the meaning of section 2 of the Acts.
5.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts, 1998 and 2008, which states: "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary." This means that the complainant must first establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Section 6(1) of the Acts 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).....".
5.3 Section 16 of the Act provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post providing that the person could do so with the provision of special treatment or facilities, providing the provision of such did not give rise to more than a nominal cost to the employer. Section 16 (1) 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 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."
5.4 The Labour Court in A Health and Fitness Club v A Worker (EED037) (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."
5.5 In applying that approach it is clear that in situations where a person acquires a disability during the course of their employment the onus is most definitely with the employer to take the following steps;
1. to ensure it has fully established the factual position of impairment and the likely duration of this condition on the employee,
2. to establish what, if any, special treatment and/or features that maybe available to allow the employee to become fully capable, this will then be further considered with regard to nominal costs, and,
3. to keep the employee concerned fully aware of proceedings and allow for their participation at every level.
5.6 To complement and develop this approach further I have also taken cognisance of the decision of the Equality Tribunal in An Employee -v- A Company, where the Equality Officers refers to a decision of Dunne J. in the Circuit Court on hearing the appeal of A Health and Fitness Club v A Worker (EED037) as mentioned above. The Equality Officer said in paragraph 4.11;
" I note that the complainant submitted that there was a failure to provide appropriate measures that would have enabled the complainant to return to the workplace. I note both parties refer to Humphreys v Westwood Fitness Club. In this case Dunne J. sets out a process lead approach to a person with a disability which essentially holds that:
- even if there is a strong possibility that the employee may in fact be incapable of doing the job, the obligation to provide appropriate measures comes first
-that an employer is thus obliged, when on notice of an employee's disability, to go in good faith through a process of checking objectively, with qualified expertise where needed, what is the actual medical situation, what are the necessary implications for work, and what can be mitigated by appropriate measures,
- and that an employer who has failed to go through that process will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is probably serious enough to render the employee not fully capable of undertaking their duties under section 16(1).
It was submitted by the complainant that the respondent failed to consider any alternatives to enable the complainant to return to his post. The complainant's representative referred to a letter from a named doctor that suggested that it a phased approach might be suitable. I note that the medical opinion sought by the respondent specifically states that: "no recommendations that could be made in relation to accommodations that it would be appropriate in managing [the complainant's] future risk within the workplace". I am satisfied that the respondent has completed a process-oriented approach when considering the complainant's return. (my emphasis is added)
5.7 Accordingly, I must now look at the evidence and consider the case before me bearing in mind the approach set out in the authorities from the established case law. I note that as far back as the 8th August 2006 the complainant's Consultant Orthopaedic Surgeon, Dr. A, put the respondent on notice that the complainant was "... now fit to return to work on a part time basis initially" and that she was "fit for her normal work practice except for lifting heavy bags". I note that respondent sought precise detail of the duties the complainant could perform, and in September 2006 Dr. A said "I think you need to have the job conditions assessed by an occupational physician". I am satisfied that the respondent was aware from this that the complainant may not be in a position to perform all the duties immediately and was well within its rights to seek clarity in relation to the same at that stage.
5.8 I note that the respondent chose to invite the complainant to attend a GP organised by it to have her medically assessed. I note that the complainant claims that she was of the understanding that the GP visit was in relation to a separate personal injury claim and was not in relation to her return to work assessment following her back surgery. She claims she was not notified that this assessment was in relation to her return to work post surgery and she was not given a copy of the examination assessment or the final GP report. I am satisfied from the evidence presented that the respondent used this medical assessment to form its opinion that Ms. Sullivan was not in a fit state to resume all her duties at that time. I note the GP's report where it said " ... [Ms. Sullivan's back] is not likely to stand up to the full range of duties that might be assigned to her...". It is not disputed by the respondent that the report from the GP or its findings were not shared with the complainant.
5.9 I am satisfied that what resulted was a stalemate whereby months passed where the parties exchanged correspondence reiterating their positions - Ms. Sullivan relying on Dr. A's report that she was fit to return to work with certain restrictions and the respondent claiming that it was not willing to allow her return to work until she was deemed fit to return to take up the full list of duties. I am satisfied that it was not until the complainant's medical report from Dr. B, the complainant's Consultant Occupational Physician, which was furnished to the respondent in November 2007, that the questions around providing a clearer picture of Ms. Sullivan's capabilities were revisited since November 2006, a full year later, and I am satisfied that the whole question of reasonable accommodation was only considered by the respondent on foot of receiving this medical report.
5.10 It is clear from the case law that the onus rests with the respondent to take a proactive approach in establishing the actual position of the complainant's disability and determining the implication on her possible return to work, seeking qualified professional advice where necessary and always allowing the complainants to have input and influence into what is happening. I am not satisfied that the measures taken by the respondent can be considered as appropriate from the evidence presented before me in this case. I am mindful that in November 2006 the complainant was medically assessed by a GP, who felt that the complainant might not be able to take up the full range of duties of the job. However the report lacked clarity as to what recommendations it had for the complainant's possible return to work, if at all. The report is silent on the possible/probable duration of the complainant's condition. The other obvious difficulties I have with the respondent's actions here is that the report was not shared with the complainant, she was not asked for her opinion as to its findings, and therefore she could not influence the respondent's decision on the basis that it had formulated an opinion by reference to a report that she was not aware of or had access to. The report mentioned certain duties that she could possibly do if she returned to work - I am mindful that these duties were part of her original duties prior to leaving work - but this was not explored in the context of getting her back to work. I note that the complainant's own medical opinion at the time was that she was able to return to work in graduated fashion at first. It is clear from the evidence and in meeting the personalities at the hearing that the relationship between the complainant and the respondent was somewhat fraught and strained. It would appear that Ms. Sullivan's prolonged absence from the workplace may have been an ease rather than a burden to certain individuals at the respondent.
5.11 I do not accept that the respondent had sufficient information to prevent the complainant from returning to the work place and I am satisfied that it failed to take the necessary steps to address this anomaly. In order to complete the two stage test and satisfy section 16 (3) of the Acts, I would have expected the respondent to have consulted with the complainant and sought to refer her to a specialist particularly when the GP's report lacked clarity regarding the duration of her condition and it failed to match the complainant's ability to do the duties required for the job. I am satisfied that as the essence of the respondent's report is at odds with that of the complainant's medical opinion, there is then a definite requirement on the respondent to seek clarity. I am also satisfied that the lack of communication from the respondent on its medical report findings infringed the very principle for the need of strong communication and transparency between it and the complainant. Accordingly, I conclude that the respondent was not in possession of sufficient facts to be able to rely on a defence under section 16 of the Acts by not accommodating her return to work and that this amounts to discriminatory treatment in relation to her disability.
6. Decision
6.1 I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts. I find that the respondent has failed 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 her return to employment contrary to section 8(b) of the Acts.
6.2 In accordance with section 82 of the Employment Equality Acts 1998 to 2008, I therefore order that:
the respondent pay the complainant €15,000 in compensation for the distress experienced in relation to the above matters, this is not in the nature of pay, and therefore not subject to tax.
as the complainant is still an employee, the respondent shall meet with the complainant to establish whether the complainant wishes to return to work for the respondent, and if so, both parties shall (a) put a communications strategy in place to facilitate their future working relationship. And (b) the respondent shall expedite a return to work schedule for the complainant which shall include a re-assessment of the complainant's medical condition by a qualified Occupational Physician with regard to her duties with the respondent. This entire process shall be completed within 4 months from the date of this decision.
______________
James Kelly
Equality Officer
13th June 2011