EQUALITY OFFICER'S DECISION NO: DEC-E/2011/049
PARTIES
Ms. A
(REPRESENTED BY PATRICIA LENIHAN)
AND
A CHARITABLE ORGANISATION
(REPRESENTED BY ADVOCAT COMPLIANCE LIMITED)
FILE NO: EE/2010/084
DATE OF ISSUE: 11 MARCH, 2011
Dispute
This dispute involves a claim by Ms. A, that she was discriminated against by A Charitable Organisation, on grounds of her disability, in terms of section 6 (2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 in relation to her conditions of employment and that she was harassed by the respondent on the same grounds contrary to section 14(A) of the Acts. The complainant also claims that the respondent failed to provide her with reasonable accommodation in terms of section 16 of the Acts.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 10 February 2010.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 6th of October, 2010 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to a hearing on 11th of February, 2011.
3. Summary of complainant's case
3.1 The complainant has been employed by the respondent since the 27th April, 1998 and has been working in her current role since June 2005.
3.2 The complainant submits that she was subjected to discrimination, on disability grounds, in relation to her conditions of employment, in that, she was requested to attend a disciplinary meeting while absent from work on sick leave.
3.3 The complainant submits that she was harassed by the respondent on grounds of disability when the respondent continued to request her attendance at a disciplinary meeting while she was absent from work on sick leave. It is also submitted that the respondent harassed the complainant by failing to recognise the complainant's disability.
3.4 The complainant further submits that the respondent failed to provide her with reasonable accommodation, in terms of section 16 of the Acts, when the respondent continued to request her attendance at a disciplinary meeting while she was absent from work on sick leave. The complainant also submits that the respondent failed to take appropriate measures to ensure her participation in the employment when it failed to put in place measures requested by the complainant in order to facilitate her return to work.
3.5 It is also submitted that the respondent failed to make appropriate enquiries in to the complainant's medical status.
3.6 The complainant states that she went out on sick leave from 15th to 22nd of December 2009, and that she advised the respondent that this was due to work related stress. The complainant submits that this was advised to the Respondent on 16th of December, 2009 and that despite this, the respondent continued to schedule a disciplinary hearing for 17th of December, 2009. The complainant submits that the respondent arranged for her to have a medical assessment with an Occupational Health Specialist whose assessment and resultant report was made without consultation with or referral to, her own medical advisors. The complainant submits that the respondent continued to request her participation in disciplinary hearings despite her, being medically unfit to attend at same. The complainant submits that the respondent refused to facilitate her return to work by failing to put in place reasonable accommodation measures requested by the complainant.
4. Summary of respondent's case
4.1 The respondent denies that it discriminated against the complainant, whether on grounds of disability or at all. The respondent accepts that the complainant is now suffering from a disability and that it now has certain obligations under the Acts to provide reasonable accommodation for the complainant. The respondent indicates that the complainant was not suffering from a disability or had not advised the respondent that she was suffering from a disability when it first scheduled a disciplinary hearing.
The respondent submits that the complainant has been employed with them since 1998 and has been in her current role since June 2005.
4.2 The respondent submits that, as a culmination of various events, prior to this complaint being submitted, it had scheduled a disciplinary meeting with the complainant, to take place on the 17th of December 2009. These matters had previously been the subject of both an informal and a formal procedure within the organisation itself and have also been before a Rights Commissioner. It is submitted that, at this point, there had been no suggestion of the complainant having a disability.
4.3 It is submitted that on 10th December 2009 the respondent wrote to the complainant, requesting her attendance at the disciplinary hearing on, the 17th of December. It is submitted that the complainant's representative, Ms. Linehan responded on 11th December indicating that she (the representative) would not be available on 17th December and suggesting that it be postponed until late January early February. On 14th December it is submitted that the respondent replied to Ms. Linehan proposing that, the hearing be held on 18th of December. The Respondent submits that on 17th of December Ms. Linehan left a voicemail for the respondent indicating that the complainant was now on certified sick leave due to work related stress. After receiving a medical certificate to this effect, (on 18th of December) which indicated that, the complainant would be unfit to attend work until the 22nd of December, the respondent postponed the hearing until the 8th of January 2010 and arranged for the complainant to be seen by Dr. F, a specialist Occupational Health Physician.
It is submitted that the disciplinary hearing has not yet taken place as the complainant remains absent from work and is submitting medical certificates which state that she unfit to attend work.
4.4 It is submitted that the complainant was assessed by Dr. F on 5 January, 2010, who reported that the complainant was "not clinically depressed", but noted that "she exhibited overt anxiety symptoms and there was also evidence of paranoia". Dr. F's report also indicated that the complainant should have been fit to return to work on 25th of January, 2010
4.5 The respondent's submission relates only to matters up to the date of the initial complaint to the Tribunal i.e. 10th February, 2010 as details of more recent incidents of the allegations were submitted by the complainant at a later date. The respondent however, addressed these additional matters orally, at the hearing.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me is now whether or not the respondent discriminated against the complainant, on grounds of disability, in terms of section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008 in relation to her conditions of employment and whether or not, the respondent failed to provide the complainant with reasonable accommodation, within the meaning of section 16 of the Acts. Furthermore, I must also consider whether the complainant was harassed by the respondent on the same grounds contrary to section 14(A) of the 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 both parties at the Hearing.
5.2 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 elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: "places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".
5.3 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".
5.4 Disability Ground
In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts. The complainant submits that this disability is 'stress and an adjustment disorder' and that the respondent was made aware of this disability on 18th December, 2009. In addition, the complainant has submitted a number of medical reports detailing her condition at various points during the relevant time period.
The complainant advised the respondent in December 2009 that she was unfit for work due to 'work-related stress' and submitted a medical certificate to this effect indicating that she would be unfit for work until 22nd of December, 2009. The complainant is submitting that submission of this medical certificate constitutes notifying the respondent of a disability.
The Respondent indicates that the submission by the complainant of a medical certificate for "work-related stress" in December 2009 does not amount to notification of a disability to the respondent.
The complainant is asking the Tribunal to consider "work-related stress" as a disability in this regard and cites the case of Mr. O Vs A Named Company
The complainant in the above referenced Mr. O case submitted that, he suffered from "anxiety caused by work-related stress". The Equality Officer in this case who accepted that the complainant was a person with a disability, within the meaning of section 2 of the Employment Equality Act 1998 went on to state that
"I must also make it clear, having regard to the extensive medical evidence at the hearings of this claim, that I am satisfied that the complainant's disability was not solely work-related. His medical difficulties had occurred many years prior to this employment and possibly when he was an adolescent. Major incidents in his life, many of which were personal, had adversely affected his condition and stress at work (i.e. having to produce quality work to deadlines) aggravated the condition".
In addition to this the complainant in the above referenced case was examined by a consultant psychiatrist who held that "the complainant suffered from a severe anxiety type illness or an atypical depressive illness and this was confirmed by telephone with the complainant's treating consultant psychiatrist in St. John of God's Hospital".
I am not satisfied that the conclusions in the case of Mr. O should automatically lead an employer to conclude that any employee suffering from 'work related stress' is suffering from a disability within the meaning of section 2 of the Employment Equality Acts. In addition, in the present case the medical certificate submitted by the complainant on 18th December went on to state that "Karina has had until recently an excellent health record. She is currently suffering from work related stress..."
I am also not satisfied that the submission of a medical certificate indicating that an individual is suffering from, 'work related stress', in and of itself, comes within the meaning of section 2 of the Employment Equality Acts.
The Respondent however, acknowledges that, later medical reports submitted by the complainant, which state that she was now suffering from 'an adjustment disorder' and 'depression and anxiety' do in fact indicate that the complainant is suffering from a disability within the meaning of section 2 of the Employment Equality Acts. These medical reports were dated 12th April, 2010 and 28th April, 2010 and the respondent accepts that, as and from this point, it has been notified that the complainant is suffering from a disability and accepts that, it now has certain obligations under the Acts to provide reasonable accommodation for the complainant.
I am therefore satisfied that following receipt of the above mentioned medical reports the respondent is now aware that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.
5.5 Discriminatory Treatment
5.5.1 The complainant, at the hearing, indicated that she was subjected to discrimination, on disability grounds, in relation to her conditions of employment, in that, she was requested to attend a disciplinary hearing while absent from work on sick leave. The respondent, at the hearing, accepted that it had requested the complainant to attend at a disciplinary hearing which was first scheduled on 10th of December to take place on 17th of December. It is submitted that, at this point the complainant had not advised the respondent of any disability. I am satisfied that at this point in time the Respondent had not been advised the complainant had a disability and so could not have discriminated against the complainant on grounds of disability.
5.5.2 The complainant at the hearing stated that the respondent continued to request her attendance at disciplinary hearings while she was on sick leave from work and that this amounted to discrimination on grounds of her disability. The respondent advised the hearing that on receipt of notification of the complainants 'sick leave', and following various requests from the complainant, postponed the disciplinary hearing on a number of occasions. As it has been established above that the respondent had not been notified of the complainant's disability until April 2010, I am satisfied based on the totality of the evidence provided, that any requests by the respondent to the complainant to attend disciplinary hearings prior to this could not have been construed as discrimination on grounds of disability.
5.5.3 I will now examine the claim of discriminatory treatment as it relates to the period after the respondent was notified that the complainant was suffering from a disability. The complainant at the hearing stated that she was again requested to attend a disciplinary hearing on the 24th of September, 2010. The respondent stated, at the hearing that it did reschedule the postponed disciplinary hearing for this date, as it had been advised by the complainant that, she was fit to attend a return to work meeting on this date and would be in attendance in the workplace on this date. The complainant accepted that she had indicated to the respondent that she would be available to attend a return to work meeting on this date. I am satisfied that, the respondent was, at this point, aware that the complainant was suffering from a disability. I am also satisfied, based on the totality of the evidence provided on this matter, that the respondent did not discriminate against the complainant by asking her to attend a previously postponed disciplinary hearing on a date which she had indicated that she would be available to attend another meeting.
5.6 Harassment
The complainant has submitted that the respondents continuing requests that she attend a disciplinary hearing, while she was absent from work on sick leave, amount to harassment. It is also submitted that the respondent harassed the complainant by failing to recognise the complainant's disability. The complainant has submitted that this harassment occurred when the respondent rescheduled the disciplinary hearing for 28th January 2010 and indicated that the hearing would not be postponed again but, that a decision would be made on the issue on that date. The complainant has also submitted that a letter from the respondent on 4th February 2010 advising the complainant that, no further sick pay would be paid and indicating that failure to return to work would be treated as a disciplinary matter is also evidence of harassment. As I have outlined above I am satisfied that the respondent was only notified of the complainant's disability in April 2010 and prior to this could not have harassed the complainant on grounds of disability.
5.7 Reasonable Accommodation
5.7.1 The next matter I have to consider is whether the respondent provided the complainant with reasonable accommodation in accordance with the Acts. Section 16 of the Acts provides:
(3) (a) "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.
(b) The employer shall take appropriate measures, where
needed in a particular case, to enable a person who has
a disability --
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate
burden on the employer.
(c) In determining whether the measures would impose such
a burden account shall be taken, in particular, of --
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer's
business, and
(iii) the possibility of obtaining public funding or other
assistance.
(4) In subsection (3) --
''appropriate measures'' in relation to a person with a disability --
(a) means effective and practical measures, where needed in a
particular case, to adapt the employer's place of business
to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes
the adaptation of premises and equipment, patterns of
working time, distribution of tasks or the provision of
training or integration resources, but
(c) does not include any treatment, facility or thing that the person
might ordinarily or reasonably provide for herself or
herself;"
5.7.2. In the instant case it is useful to consider the Labour Courts comments in the case of 'A Health and Fitness Club Vs A Worker' which examines what is required of an employer in terms of providing reasonable accommodation. It recommends that the following 2 stage process be undertaken
"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."
Although the present case does not concern discriminatory dismissal, the above test can still be applied.
5.7.3. On the day of the hearing it was accepted by the respondent that the complainant was diagnosed with a disability in April 2010. Prior to this the complainant had been on sick leave due to work related stress. This was advised to the respondent on 18th of December 2010 when the complainant submitted a medical certificate to this effect. The respondent rescheduled the hearing a number of times but deferred it due to the complainant's sick leave. During the period (December to April 2010) the complainant submitted various medical certificates and reports to the respondent indicating that she was unfit to return to work due to work related stress. On 14th April, 2010, the respondent arranged for the complainant to be reviewed by Dr. C, a consultant psychiatrist. Dr. C's report diagnosed that, the complainant was suffering from "anxiety and depression" and an "adjustment reaction". Dr. C's report goes on to indicate that, the complainant is anxious to return to work on a part time basis and to go back for a few weeks prior to a disciplinary hearing, Dr. C. comments that this is probably reasonable.
5.7.4 Dr. F, Occupational Health Specialist, (who had examined the complainant in January 2010), by letter dated 29th of June, 2010, in commenting on Dr. C's report to the respondent indicated that, due to the diagnosis of an "adjustment reaction", he felt that due process should be moved forward within 2 weeks of the complainants return to work. Dr. F also commented that returning to work part-time for a few weeks would be beneficial for the complainant but not essential.
5.7.5 On 2nd June 2010 the complainant submitted to the respondent a letter from her GP as well as a report from Dr. PC, Professor of Psychiatry, dated 12th April, 2010 indicating that the complainant is suffering from "an adjustment disorder" and advising that the complainant will be fit to return to work "if and when the adverse situation as she perceives it, is addressed fully and fairly". Also enclosed with the 2nd of June correspondence is a letter from Dr. D, Consultant Psychiatrist, indicating that, he has received correspondence from the complainant's representative, regarding recommendations for the complainants return to work. This letter outlines the recommendations suggested by the complainant's representative for her return to work and indicate Dr. D's agreement with these recommendations.
5.7.6 The complainant has indicated that she wished to return to work but would only do so once the respondent had put in place reasonable accommodation measures as specified in the 2nd of June letter from Dr. D. The complainant at the hearing indicated that the respondent has failed to put in place these measures and in doing so, is refusing her access to employment.
5.7.7 The respondent, at the hearing, stated that, the accommodations outlined in the letter of 2nd of June were suggested by the complainant's representative and are not the recommendations of a medical professional. The complainant, at the hearing, accepted that these recommendations were made by her representative on her behalf and that Dr. D in his letter had agreed with such recommendations.
5.7.8 The respondent, at the hearing, indicated that it had written to the complainant in June 2010, requesting that the complainant confirm her fitness to return to work and attend a return to work meeting, to discuss how that return could be facilitated. The complainant's response to this was that she was fit to return to work, however she had continued to submit medical certificates indicating that she was unfit for work. In addition, the complainant indicated that she would return to work, once the reasonable accommodation measures set out in the letter of 2nd of June, had been put in place. The respondent wrote to the complainant again in July 2010, regarding the matter of a return to work meeting and how such return could be facilitated by the respondent. The respondent in this correspondence indicated that they would be following the expert medical advice received as well as the opinion's of the complainant's own doctor in these matters. The respondent, in its June and July correspondence, has indicated that the complainant's representative, can attend the disciplinary hearing but, not a return to work meeting.
5.7.9 The complainant, through her representative, wrote to the respondent in August 2010, again requesting that recommendations made in the letter of 2nd of June be put in place. This letter also indicated that the complainant's representative would be attending the return to work meeting and offered dates on which she would be available to attend this meeting. The respondent wrote to the complainant again in September 2010, indicating that, the respondent is frustrated by attempts to arrange a meeting with the complainant and is still receiving medical certificates to the effect that the complainant is unfit to return to work. The complainant's representative replied to this letter in September 2010, indicating that, the complainant would be available to attend a meeting with the respondent on 24th September, 2010. This meeting did not take place due to a dispute regarding the attendance of the complainant's representative at the meeting. Following additional correspondence, between the complainant and respondent, the respondent arranged a further medical review for the complainant, with Dr. F, on 15th November 2010. This review has not yet taken place due to, a lack of clarity regarding the release of the complainant's medical reports from her medical advisors. It emerged at the hearing, from evidence given by both parties, that there was some confusion regarding responsibility for obtaining/referring the complainant's medical reports. The matter of a review by Dr. F remains outstanding at the date of the hearing.
5.7.10 I note that, the complainant states that the respondent is preventing her return to work, despite her continuing to submit medical certificates, indicating that she is not fit to return to work. In addition, I note that, the respondent, wrote to the complainant in June and July 2010, requesting that the complainant confirm her fitness to return to work and attend a return to work meeting to discuss how that return could be facilitated. The complainant's response to this was that she was fit to return to work, despite her still submitting medical certificates to the contrary. In addition, the complainant indicated that she would return to work once the reasonable accommodation measures set out in the letter of 2nd of June had been put in place. I note the respondent has made extensive efforts to discuss with the complainant her return to work and how such return could be facilitated by the respondent. I find that the respondent's efforts to reach a solution on the matter of reasonable accommodation have been frustrated by the complainant's insistence that accommodation measures specified in the letter dated 2nd of June be put in place.
5.7.11 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, the respondent when faced with a situation where an employee advised them that she was suffering from a disability, made appropriate enquiries by seeking the advice of Dr. C, a consultant psychiatrist in addition to that of Dr. F a specialist Occupational Health Physician regarding the complainants condition and the facilities required for managing her condition. I also note that the respondent has made efforts to meet with the complainant to discuss her return to work and reasonable accommodation measures which may be required.
5.7.12 I am thus satisfied, based on the totality of the evidence provided on these issues that the respondent has made every effort to facilitate the complainant's return to work and to ascertain what if any special measures are required to facilitate the complainant in her return to work. Accordingly, the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
6. Decision
6.1 Having investigated the above complaints, 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 disability, grounds pursuant to section 6 of the Acts in terms of her conditions of employment and contrary to section 8 of the Acts;
the respondent did not harass the complainant on the disability grounds contrary to section 14(A) of the Acts
the respondent did not discriminate against the complainant on the disability ground pursuant to section 6(2)(h) of the Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
______________________
Orla Jones
Equality Officer
11th March, 2011