DEC-E2013-083- Full Case Report

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

Decision DEC - E2013-083

PARTIES

A Medical Secretary

(represented by Thomas Wallace O'Donnell B.L. instructed by Leahy & Partners Solicitors)

-V-

HSE West

(represented by Kevin Little Employee Relations Manager)

File Reference: EE/2009/671

Date of Issue: 31st July 2013

Keywords: Employment Equality Acts 1998-2011 - direct discrimination - Section 6(1), less favourable treatment - 6(2)(g) - disability ground, Section 8- conditions of employment, Section 16(1)- reasonable accommodation / appropriate measures, Section 77(5)(a) - time limit for referring complaint.

1. Dispute

This dispute involves a claim by the complainant that she was discriminated against by the above named respondent on disability grounds, in terms of section 6(1) & 6(2) (g) and contrary to section 8 of the Employment Equality Acts, 1998 and 2011 in relation to her conditions of employment and promotion and she also claims failure to provide reasonable accommodation in accordance with section 16(1) of the Acts.

2. Background

2.1 The complainant referred a complaint under the Employment Equality Acts to the Equality Tribunal on the 10th September 2009 alleging that the respondent discriminated against her contrary to the Acts. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 the Director delegated the case on 12th June, 2012 to me, Marian Duffy, 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 the complainant on the 23rd February 2010 and from the respondent on the 28th September 2010. A hearing on the complaint was held on the 21st June 2012 and the 19th of June 2011 and the last correspondence was received on the 28th of June 2013.

3. Summary of the Complainant's case

3.1 The complainant was employed as a medical secretary (clerical officer grade) by the respondent since April 2001. It was submitted on the complainant's behalf that she suffers from a debilitating bowel condition and was also diagnosed with diverticular disease. In July 2007 she was informed that she had to move from her existing office which was convenient to the toilet to a different office where it was more difficult to access the toilet. The nature of the complainant's medical condition is such that she needs to be able to access a toilet quickly as she suffers from embarrassing symptoms associated with her medical condition. As she was unable to comply with the new working arrangements she was placed on sick leave. The complainant provided medical evidence to the respondent which clearly stated that she would be fit to return to work if she was provided with a single office close to toilet facilities. It was submitted that the respondent failed to make reasonable accommodation despite repeated requests and has denied the complainant access to her position as a medical secretary since July 2007. The situation continued throughout 2007 and 2008 with the complainant repeatedly requesting that an accommodation be made to enable her to return to work.

3.2 In October 2008 the respondent held a competition to fill medical secretary posts which had been upgraded to assistant staff officer grade. The complainant participated in the competition and was placed 51st out of 59 placed on the panel. On 21st March 2009 the respondent issued contracts of employment to the first 50 staff on the panel but the complainant was not offered a place. It was submitted that this was a further act of discrimination

3.3 The complainant stated in evidence that she commenced work with the respondent in 2001 and she worked as a medical secretary to 3 consultants in a shared office with one other medical secretary in the Regional Hospital. She said that her duty included making appointments for patients with the consultants and that she very rarely met patients face to face. She said that after the diagnosis of her condition in 2004 she continued to work without any difficulty because the toilet was beside the door and this meant a lot to her. She said that the colleague who shared the office understood her condition and they got on well together. In September 2006 they were told that they would have to move office to the nurses' home located in the Hospital campus. The complainant said that she visited the offices that she would now be sharing with 3 other staff and saw that the toilet was further away down a long corridor. The complainant said in evidence that her medical condition is difficult to manage. She said that she experiences acute attacks which would cause embarrassment if she worked in a shared office. Prior to the instruction to move offices she made the respondent aware of her condition and the necessity for her to be adjacent to a toilet and to have an office on her own. It was impractical and would be embarrassing for her to have to move to an office shared by three others. The respondent told her that the office was required by a registrar for research and a reading facility. She said that she obtained medical evidence from her GP stating that she required a single office near a toilet facility. She said that she went straight to her line manager and she informed her of her medical condition. She said that management already knew about her condition as she had sent in a medical certificate. She offered to provide further medical evidence to her manager. She said her manager promised her that she would look after her and she understood this to mean that she would be left in the office she now occupied on her own. In October 2006 her work colleague moved to the office in the nurses' home and the complainant remained in her own office.

3.4 In June 2007 her manager went out on term time she was replaced by another manager until September 2007. The complainant said that she was about to go on holidays and she was called to the office and informed by the new manager that she would be working in the office in the nurses home on her return from holidays. The complainant said that she informed her about her medical condition and that she would not be able to cope in the new office. She then received a letter at her home that she had to report to the new office on her return from holidays. The complainant went to work in her old office on return from holidays and she hand delivered a letter to her new manager enclosing a medical report from her doctor. She also decided to contact the HR Manager and arranged to meet her the following day. She said that she explained to the HR Manager that she could not move to the new location because of the medical difficulties she had. She felt that she did not listen to her. The complainant said that the HR Manager told her to move to the new office otherwise she would be moved to another job and she would no longer be a medical secretary.

3.5 She said that she was very stressed out by the way she was treated and she felt very unwell that evening and she went to the doctor the following day. She sent in a medical certificate on the 10th of July 2007 and she has never returned to work in the Regional Hospital since then because she was not provided with an office suitable to her needs. She submits that she was forced to take sick leave because the of the office situation. She said that she contacted her new manager and she would not deal with the problem and advised her that her own manager would deal with it in September on her return from term time leave. She said that she telephoned the office regularly in relation to her position but nobody from management contacted her and asked her about the situation. She continued to send in medical certificates and she contacted her union to sort out the situation. IMPACT wrote to the HR Manager on the 15th of October 2007 seeking a meeting to discuss the complainant's situation. In a response letter the HR Manager said that she was not aware that the new office was not suitable and that the complainant had a clear disability. The complainant said that she was seen by the OH Physician and her report agreed with her GP's recommendation as regards her office accommodation. On the 18th of October 2007 the OH Physician sent a report to the complainant's line manager supporting her GP's recommendation that the complainant should be provided with single office accommodation close to the toilet. The complainant's manager wrote to the union on the 26th of October 2007 stating that the proposed office facilities including the toilet were within an acceptable distance of the new office. The complainant said that she believes that her dignity at work would be compromised if she was forced to share an office and this was ignored in the response letter.

3.6 In December 2007 a meeting took place with the manager, the complainant and her union official and the outcome of that meeting was that the respondent would ascertain what single facilities were on the hospital campus. No response was received and IMPACT wrote again on the 15th of February 2008 to the respondent requesting a progress report on the steps that had been taken to find suitable office accommodation. The union also highlighted the findings of a further occupational health report which stated that "the disability of the complainant is twofold. First if all she has to cope with a condition that causes severe abdominal pain intermittently and secondly, she has to deal with the stress of social interaction with co-workers when she has the aforementioned embarrassing gastrointestinal symptoms." The OH also concluded that the complainant was fit to return to work on a trial basis if she could be accommodated with an office on her own and near toilet facilities. He went on to say that if it was not possible to accommodate the complainant it may not be possible for her to return to work as this is a chronic medical condition. On the 25 February 2008 the complainant wrote to the respondent concerning her sick pay because it was due to run out. She pointed out that had she not been forced to move offices she would not have had to take sick leave and requested that in the circumstances discretion should be used in relation to her salary. Following this letter the complainant said that she received a letter from the respondent stating that there were no single offices available.

3.7 She was informed that they could not accommodate her in a single office. On the 9th of May 2008 IMPACT notified the respondent that he wished to initiate the grievance procedure on behalf of the complainant. The complainant said that through her union she was offered a post in A&E and also a post in reception. She said that she could not accept either because both posts involved dealing with the public and she could not leave them unattended at reception if she urgently needed to go to the toilet. She said that if she hadn't the disease she would have been able to carry out either of the jobs. The complainant said that IMPACT wrote to HR on a number of occasions and a meeting took place with the complainant's manager, the complainant and IMPACT on the 24th of June 2008 and she was again informed that they was no suitable office available in the Regional hospital. IMPACT then raised the complainant's case under stage 2 of the Grievance Procedures. In correspondence to the respondent, IMPACT stated that he believed that the respondent was in breach of the Equality Acts by their failure to provide reasonable accommodation for the complainant. He stated that the medical evidence indicated that the complainant was fit to return to work if suitable office accommodation was provided and it was not credible for the respondent to claim that a small office on campus could not be found. He further stated that there were numerous single offices on campus occupied by a variety of staff that may merit a single office on seniority grounds but do need to occupy one on health grounds.

3.8 In October 2008 the respondent advertised Grade 4 posts following an agreement with the union concerning the regrading of medical secretaries. The complainant applied and was interviewed for the post. The complainant understood from a meeting that was held with the HR Manager prior to the competition that if you came in the first 59 on the panel you would be appointed to your own post (medical secretary in the complainant's case). The complainant said that she came number 51 on the panel and she was delighted as she believed she would be appointed to her post as a grade 4. The first 50 were appointed. The complainant stated that her union representative was told by the HR Manager that she was not making any further appointments because she was no 51. The complainant said her union representative informed the respondent that the complainant was discriminated against because of her disability. She said that another 8 people were appointed from the panel in December 2009 and the person at no 54 was appointed to her post as medical secretary in the Regional Hospital. In December 2009 she said that she was removed from the panel and she was appointed to a grade 4 post. On the 10th of September 2009 IMPACT referred a complaint of discrimination to the Equality Tribunal on the disability ground.

3.9 The complainant said that she was offered a post in Abbeyfeale Primary Care Unit in October 2009. She accepted the post and commenced work there. She said that she only worked there for 3 weeks as the position was not suitable it was reception work and dealing with the public did not suit her and the office was too small. In addition she said the facilities were not suitable because she had to work in 2 centres in the town.
She was then offered the same type of a position in Primary Care in Newcastlewest. She would also have to travel to another centre in Broadford. She said that these types of positions where she had to deal with the public did not suit her. She said that she had no problem with change provided she got the job which suited her and working as a medical secretary suited her as she had very limited face to face meetings with the patients.
In 2011 the complainant said that she was offered and took up the position of medical secretary to a consultant working in the mental health services (CAMHS). She said that she worked there for about 9 weeks. Despite the fact that she had to share the office with 3 people she decided she would try it out. The office was up 6 flights of stairs and she had to carry heavy files from this office to another office down the street. She said that there was no lift in the building or trolley for the files. She said that when she took the job she understood that she would not have to check in patients at the consultant's clinic. She was called to a meeting and it was made clear to her that she had to carry out all the duties including carrying the files and checking in the patients. She again went out on sick leave because the office and the duties were not suitable to her needs

3.10 The complainant's GP said in evidence that she diagnosed her with irritable bowel syndrome and diverticular disease in 2004. She referred her to a consultant who confirmed the diagnosis and recommended treatment. In July 2007 the complainant attended complaining of abdominal pain and she complained about being stressed at work over her accommodation. She said that she advised her to discuss the matter with her supervisor. The GP wrote a letter to the respondent explaining the nature of her condition and pointing out that it was imperative that the complainant had an office of her own near toilet facilities. She said that her view was endorsed by the OH physician in September 2007. She stated in evidence that the complainant's medical condition and symptoms were exacerbated by the change in her work circumstances. She said that her condition deteriorated due to the added stress and anxiety about her job and the fact that she was out of work and under financial pressure. She said that she has written various medical reports for the employer recommending that the complainant be accommodated. In a medical report of the 8th of December 2008 she stated "This is to certify, that this woman is suffering from diverticlular disease of her bowel. Her illness was exacerbated by her transfer from an office of her own with toilet facilities nearby, to an office shared with four other staff members and toilet facilities distant from her. She is unfit for work in these conditions."

3.11 The GP said that the complainant was offered a number of alternative posts but she was of the view that they were not suitable for her. In relation to the post in CAMHS, she was of the view that it was not a suitable post given that the office was on the 4th floor and she had to carry files down the stairs and walk up the street to another office. She said that lifting heavy files would have aggravated her condition. In 2012 the complainant was offered a post in St Camilus Hospital and her GP felt it was not suitable given the increased travelling time from her home. She said that the prospect of being remote from toilet facilities for greater than 40 minutes would put her under increased mental and physical pressure.
She said that the disease is not curable but it is manageable and treatable. She felt that she would have continued to work if she had been left in the office she had occupied in the Regional Hospital and doing the same duties. In relation to the complainant getting back to work, she believes that the complainant is fit to return to the job she had in the Regional Hospital with occupational support and provided she was given an office on her own in close proximity to a toilet. She said that the complainant wished to return to work in the Regional Hospital where she had worked.

4. Respondents case

4.1 The respondent submitted that the complaint falls outside the time limits specified in the Acts and accordingly the Tribunal should dismiss the claim. Notwithstanding this argument, the respondent submitted that the complainant was not discriminated against on any of the grounds claimed. The respondent said that they needed the complainant's office to provide research facilities for a NCHD. It was submitted the respondent is a teaching hospital and as such must provide a good standard of research and educational facilities to remain accredited with the various colleges of medicine. If the hospital does not provide the specified standard to maintain its accreditation then the hospital is at risk of losing its teaching status. In such circumstances the hospital becomes an unattractive location for NCHDs to work because they cannot progress their studies at an unaccredited hospital and would inevitably fail to attract sufficient NCHDs to work in the hospital. It further submitted that another Hospital in another region was unable to attract sufficient NCHDs to work in its medical speciality resulting in the closure of 2 medical wards with the resultant loss of employment at the Hospital. And the annual loss of revenue to the Hospital over time is likely to be in the region of €15m euro. The respondent submitted that such a cost exceeds the threshold set down in Section 9(3)(b) of the 2004 Act. Therefore the respondent was not required by law to concede the 'appropriate measures' specified by the complainant because of the associated costs in providing it.

4.2 The respondent does not accept that the new office accommodation was unsuitable for the complainant's needs. The complainant shared an office with another member of staff who co-operated with the move to the new office whereas the complainant did not. The complainant was in the office on her own for about 6 months after this until she was told she had to move to the new office. It was submitted that the toilet for the new office was about 11 seconds walk from her office compared with about a 4 second walk in the old office. The respondent denied that it ignored issues raised by the complainant in relation to the disease she had and the fear that her dignity at work would be compromised if she was forced to share office facilities were unfounded. They submitted that the complainant wished to work in isolation from other work colleagues, but it was not possible for her to do so without sharing working time with other work colleagues. The Regional Hospital is an acute busy hospital and normal workplace activity involving other employees, patients, visitors and relatives in a hospital setting takes place perhaps dozens of times per day in order to get the work done. An acute hospital is one of the most densely populated work settings with high levels of interaction and interdependence between staff taking place for the benefit of the patients served. Therefore it is inevitable that the complainant's condition would cause her some indignity at some point during the working day in such a working setting. It was submitted that the complainant seems to have pinned her ability to work for her employer to an unrealistic expectation that a single office close to a toilet could save her the embarrassment of the indignities associated with her condition irrespective of the need to engage with other staff and visitors whilst working at the hospital.

4.3 The complainant's union IMPACT lodged a grievance in May 2008 and a grievance meeting was held in June 2008 at which the respondent reaffirmed its earlier decision that there was no available single offices in the hospital. The complainant took her case to the next stage and as a result of the outcome to a hearing in August 2008 the respondent offered the complainant suitable alternative work locations at the reception desk in the Accident and Emergency Department or at the Main Reception working outside of normal hours on the late shift. The complainant rejected these two offers on the basis of the unsocial nature of the working times. IMPACT then referred the complaint under the grievance procedure to the Rights Commissioner and then to the Director of Human Resources for the Area and the matter was further referred to the General Secretary of IMPACT and the respondent's National Director of HR. Subsequent engagement took place between IMPACT and the respondent to identify an alternative employment opportunity suitable to the complainant outside the Regional Hospital. The respondent identified a post in Abbeyfeale Primary Centre and work was carried out in adapting the reception area to meet the complainant's requirements.

4.4 The respondent submitted that as there were no single offices available for the complainant within the Regional Hospital complex and they had permission from the complainant's union to explore other areas outside the Regional Hospital campus and from October 2009 to March 2012 she was offered 6 different posts. She worked for 3 weeks in Abbeyfeale Primary Care Centre and then went out on sick leave. She was offered a similar post in Newcastlewest and did not accept it. She was offered 3 different positions in St. Camillus Hospital and accepted none of them. She was offered and accepted a post in CAMHS and she worked there for 9 weeks and went out on sick leave again. It is the respondent's case that they offered the complainant several different posts which complied with their obligation under the Acts. There were alterations made to the office in Abbeyfeale and despite the fact that she inspected the office prior to taking up duty she still found the office unsuitable.

4.5 In relation to the competition for Grade 4, the respondent submitted that the reason the complainant was not appointed at the same time as the first 50 was due to the fact that the moratorium in relation to recruitment was in force and this gave rise to a delay in processing all the successful staff on the panel. The respondent submitted that the complainant was not treated any differently than any other employee who came outside the first 50 and they were all eventually appointed including the complainant.

5. Conclusions of the Equality Officer

Statutory Time Limits
5.1 Before making a decision on the substantive issue I must be satisfied that the complaint is properly and validly before the Tribunal. Section 77(5)(a) of the Acts provides:
"Subject to paragraph (b), a claim for redress in respect of
discrimination or victimisation may not be referred under
this section after the end of the period of 6 months from
the date of occurrence of the discrimination or victimisation
to which the case relates or, as the case may be, the
date of its most recent occurrence."
The respondent submitted that the complainant referred the complaint outside the statutory 6 month time limit and therefore the Tribunal does not have jurisdiction in the case. It was submitted that the date of the occurrence of the alleged discrimination in relation to her conditions of employment was July 2007 when the complainant was asked to move offices and the referral was not made until the 10th of September 2009 which is well outside the statutory time limit. The complainant's barrister submitted that the incident concerning the upgrading was referred within the 6 month time limit. The first 50 on the panel were notified of the upgrade on the 27th March 2009 and the referral was received by the Tribunal on the 27th of March 2009 which is within the statutory time limits. He also submitted that the discrimination which started in June 2007 was ongoing given the failure of the respondent to provide appropriate measures for the complainant so that she could return to work.
I was referred to the Labour Court's decision in the case of Department of Justice, Equality and Law Reform v William Kavanagh EDA1120 [2012] 23 E.L.R. 34 where the Court accepted that there were a series of related events and, a letter which was within the six month time limit was accepted as the most recent occurrence. In that case it was accepted that the complaint was referred within 6 months of that letter and therefore the statutory time limits as set out in Section 77(5) of the Acts were complied with.

5.2 In considering the issue I have also taken into consideration the Labour Court reasoning in the case of County Louth VEC -v- Don Johnson EDA0712 which considered if separate acts of discrimination were linked. The Court stated:
"Having examined the matter the Court is satisfied that these alleged discriminatory acts did not occur within the time period specified in the Act for submitting a claim. In certain circumstances, the Court may take into consideration previous occasions in which a Complainant was allegedly discriminated against on the same ground, i.e. where the alleged acts can be considered as separate manifestations of the same disposition to discriminate and the most recent occurrence was within the time period specified in the Act.
In Department of Health and Children v Gillen EDA0412 the Court considered an application to include a claim of discrimination, which occurred outside the time limit, the Court found:
"The first of these relates to whether the complaint in relation to the interview held on the 22nd of November, 1999, was in time. Section 77(5) of the Employment Equality Act states that:
The complainant's complaint is that after he had reached the age of fifty he was no longer considered by the appellant as being suitable for promotion purely on age grounds. On each occasion he competed, he was rejected by the appellant on the grounds that he was over fifty years of age. The Department submits that if the complainant is correct (which it does not accept) then he was subjected to two separate and distinct acts of discrimination, in two separate and distinct competitions by two separate bodies.
In the view of the Court, these two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the Court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground".

5.3 The respondent accepts that the allegations of discrimination in relation to the panel were referred within the statutory time limit. Having considered the totality of the evidence presented at the hearing and taking into account the complainant's referral form of 10th September 2009 and the appended page from IMPACT, I am satisfied that the complainant has established that the discriminatory treatment in relation to her disability was ongoing and there was a link between the alleged acts and the failure to place her in the medical secretary post at grade 4. Furthermore the complainant was on sick leave from work and had requested on numerous occasions reasonable accommodation to accommodate her disability between June 2007 and the 10th of September 2009 (the date of the referral) so that she could return to work. I am satisfied that the events as outlined constitute an ongoing act or a continuum of discrimination within the meaning of section 77. I find therefore that the complaint was referred within the six month time limits specified in Section 77(5) of the Acts and I have jurisdiction in the case.

5.4 I must now consider the complainant's claim that the respondent directly discriminated against her on the disability ground in terms of sections 6(1) and 6(2)(g) of the Employment Equality Acts in contravention of 8 of the Acts. The complainant alleges that the respondent failed to provide her with reasonable accommodation in accordance with Section 16 of the Acts and because of her disability failed to appoint her from a promotion panel. I have taken into account all of the evidence, written and oral, submitted to me by the complainant and the respondent.

5.5 It is a matter for the complainant in the first instant to establish a prima facie case of discriminatory treatment. It requires the complainant to establish facts from which it can be inferred that she was discriminated against on the above mentioned grounds. It is only when he has discharged this burden to the satisfaction of an Equality Officer that the burden shifts to the respondent to rebut the inference of discrimination raised.
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
"(1) 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 her or her, it is for the
respondent to prove the contrary."

5.6 Section 6(1) of the Employment Equality Acts provides:

"..... discrimination shall be taken to occur -
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) (in this Act referred to as the 'discriminatory grounds')"

Section 6(2)(g) provides that as between any two persons, the discriminatory grounds are, inter alia:
(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as "the disability ground"),
and
8. -- (1) In relation to --

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or
(e) classification of posts,

Section 8(6)(c) provides
without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one --
(a) the same terms of employment (other than remuneration
and pension rights),
(b) the same working conditions, and
(c) the same treatment in relation to overtime, shift work, short
time, transfers, lay-offs, redundancies, dismissals and disciplinary
measures,
as the employer offers or affords to another person or class of persons,
where the circumstances in which both such persons or classes
are or would be employed are not materially different.

The definition of disability in Section 2(1) of the Acts is as follows:
''disability'' means --

(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;

5.7 It was accepted by both parties that the complainant's condition is a disability within the meaning of the Acts. The complainant's case is that she required a single office near toilet facilities in order for her to carry out the duties of her position as a medical secretary. Therefore the matter I have to consider is, whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts?
The complainant disputes that she was provided with reasonable accommodation.

5.8 Section 16 of the Acts provides:
"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.
................
(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;"

5.9 The complainant case is that the respondent failed to take her disability into account when she was told to move from the office which she occupied on her own for a period of 9 months. She said that she worked in an office on her own near the facilities she needed and this allowed her to do her job and to cope with her disability. I note that following proposals in 2006 to move her from the office she occupied with another member of staff to an office with 3 staff in the nurses home she informed her manager of her disability and her requirement for an office on her own near toilet facilities. She understood from her manager that she would be left in that office indefinitely. However in June 2010 when her manager went on term time she was notified that she would no longer be working in that office on her return from annual leave in early July. She was told she would have to move to the office with 3 other staff in the nurses home. I am satisfied from the evidence of the complainant which was not disputed by the respondent that she was provided with reasonable accommodation by her manager in 2006. I note that that these measures were removed from her in June/July 2007 when her manager was on term time and without any further assessments of her needs. It appears that it was not considered whether it was appropriate to place her in an office with 3 other staff when she made the new manager aware of her disability. It is clear from the evidence that the complainant attempted to resolve the issue both with her new manager and the HR Manager. I note that she provided medical evidence from her GP regarding her condition. The certificate was very clear and stated "it is imperative that she has an office of her own near toilet facilities." The complainant's evidence is that she met with the HR Manager to try and explain her case without any success and she was told that if she did not relocate she would be moved to a different job and she would no longer be a medical secretary. She was also told by her the new manager that she would have to wait until the return of her own manager from term time in September to resolve the matter. The complainant's evidence was that she felt very stressed by the way she was treated and that she was given no alternative options in relation to the office situation and she was forced to go out on sick leave because her medical condition caused her embarrassment and she believed her dignity at work would be compromised if she was forced to share an office with 3 other staff.

5.10 I am of the view that the HR Manager did not take the complainant's medical problem seriously and did not make any attempt to resolve the matter in the absence of the complainant's manager. I note in a response to a letter from IMPACT dated 17th of October 2007 the HR manager stated "I was surprised to note the concerns in relation to the proposed relocation of the offices. I was unaware that the new facilities were not within reasonable access to toilets and washing facilities and also that this employee had "a clear disability." It is clear that the respondent's own OH physician, to whom the complainant was referred in October 2007, stated the complainant was fit to return to work on the condition that she was provided with an office on her own and the facilities her GP recommended and this report was available to the HR Manager and also the other medical certification provided by the complainant in relation to her condition. Despite having these medical reports being available to HR, there was no indication in October 2007; nearly 5 months after the complainant was told to move from her single occupancy office, that any enquires had been made in relation to the provision of reasonable accommodation. The request for a single office was completely ignored and was not addressed by the HR manager in the response letter to IMPACT. There was no adequate investigation carried out to find out what could be put in place to accommodate the complainant in her position as medical secretary. The Act requires that appropriate measures should be put in place for a person with a disability and this means effective and practical measures.....to adapt the employer's place of business. In this case the effective and practical measures required for the complainant at the time was a single office near a toilet and this would have allowed her to continue to work in her position as a medical secretary.

5.11 The respondent denies that the complainant was discriminated against in relation to her conditions of employment and that they failed to provide reasonable accommodation for a person with a disability. It was submitted by their representative that the complainant was offered a number of positions and that she found them all unsuitable to her needs. It was submitted by the complainant's barrister that the respondent was not proactive in seeking out the appropriate accommodation for the complainant and I was referred to the Labour Court decision in the case of A Government Department and An Employee (Ms B) Det. No. EDA061 which was followed by the Equality Officer in the case of Mr.A. v A Government Department DEC-E2008-023. The Labour Court stated:
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. In Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 the EAT for England and Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by section 6(1) of the Disability Discrimination Act 1995 (which corresponds to S16 of the Act) included an obligation to carry out a proper assessment of the disabled employee's needs. In the headnote of the report the following statement of the law appears:
"A proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by S.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6(1) could not be accepted. The making of that assessment cannot be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfilment of that duty and therefore part of it..."

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. However if this results in a diminution of the person's prospects of advancement in employment it would seem reasonable to conclude, on a purposive construction of the Section, that the employer should then consider if any countervailing measures could be taken to ameliorate that disadvantage.

5.12 I note that it was nearly 6 months after the complainant went on sick leave after she was moved from her office before the respondent had a meeting with the complainant and her union representative and engaged actively in seeking a resolution to the issue. This meeting took place on the 13th of December 2007. I note that the respondent was very slow in responding to IMPACT and before the respondent actively engaged with the issue IMPACT had to raise the matter under the grievance procedures. It is clear from the evidence that the respondent was not proactive in any way in seeking a single office near a toilet for the complainant. It surprises me that the complainant was not left in the single office she occupied until a suitable office could be found for her either in the hospital or nurses home. The decision taken to move her from the office which she occupied on her own clearly should not have been taken until the respondent was in a position to provide her with another office which met her needs given that the respondent was aware since 2006 of the complainant's medical condition. The decision to ignore her request for a single office on her own near a toilet had serious consequences for the complainant in that her condition was exacerbated.

5.13 I am also guided by the Labour Court determination in the case of Humphrey's v Westwood Fitness Club Det. No. EED037 and which was upheld by the Circuit Court. This was a dismissal case but the test set out by the Labour Court can equally be applied in relation to reasonable accommodation The LC stated:
"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.................
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."
Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant's own doctor or an independent doctor where there are concerns in relations to the health of a worker.

5.14 In relation to the first part of the test which requires the respondent to obtain facts about the complainant's medical condition, I note that the respondent had medical reports about the complainant's medical condition both from her GP and their own OH doctor and these medical reports stated that she could return to work provided that she was accommodated in a single office close to the toilet. These reports were not acted upon with any urgency by the respondent.

In relation to the second leg of the test which requires the respondent to consider what if any special treatment or facilities may be available by which the employee can become fully capable, the respondent in fact removed the complainant from the reasonable accommodation which she had and did not provide her with alternative office accommodation i.e. a single office near toilet facilities.
The respondent submitted that they offered the complainant suitable alternative accommodation at the reception desk in Accident and Emergency or the Main Hospital reception working outside normal hours on the late shift following the union pursuing the matter through the grievance procedures and the complainant rejected these 2 proposals. The complainant submitted that reception work did not suit her due to the nature of her condition and the need to urgently use toilet facilities. I note that these offers of alternative work were made more than a year after the complainant was told to move from her office and when the respondent had in its possession at least 2 medical reports stating that the complainant needed an office on her own near toilet facilities and following a number of letters and meetings with IMPACT seeking such accommodation. I cannot accept that these offers of alternative employment in 2 very busy and public areas of the hospital constituted reasonable accommodation within the Act.

5.15 In relation to the alternative posts offered to the complainant outside the Regional Hospital campus between October 2009 and March 2012, the respondent submits they were all suitable posts for the complainant. They submitted that the complainant's health problems had increased and she was seeking expanded reasonable accommodation in that she could not do reception work or lift heavy files. In relation to Abbeyfeale post the respondent stated that the complainant inspected the office and the respondent adapted it to suit her needs. The complainant said that all of the positions offered to her either involved reception work or dealing with the public and this type of work was not suitable to her given her medical condition. She said that the post of medical secretary did not involve attending clinics and checking in patients and she had very little face to face contact with patients. She said that a back office job suited her medical condition and this is what she did as a medical secretary. In addition she said that there was a trolley and lift in the Regional Hospital and she could move files without any difficulty. In evidence the complainant's GP said that the complainant's medical condition was exacerbated by the added stress and anxiety she suffered as a result of being out of work so long which also caused her financial difficulties. It seems to me that all the alternative posts offered did not meet the reasonable accommodation that the complainant's GP said she needed. All the posts had some element of reception work and in relation to the CAMHS post she shared an office up 6 flights of stairs without a lift and had to carry files down the street to another office where she was required to do reception work and there was no toilet facilities near the office. I cannot accept that any of the positions offered to the complainant were comparable with her post as medical secretary and constituted reasonable accommodation in accordance with the recommendation of the complainant's GP and the OH physician.

5.16 The complainant said in evidence that there were plenty of single offices available in the Regional Hospital campus. The respondent did not provide any direct evidence in relation to the type of enquires made in order to source a single office and no witnesses attended on behalf of the respondent in relation to this aspect of the case. However I note from the respondents notes of a meeting on the 24th of June 2008 with the complainant and IMPACT that they identified a number of single occupancy offices within the Hospital including one occupied by a medical secretary. The occupants of these offices could not be moved because no alternative accommodation could be located and in one case a consultant was unwilling to give up the single occupancy office for his medical secretary. Likewise I note that there were over 90 offices in the nurses home both single and multi occupancy offices. I cannot accept that the respondent was unable to locate a single occupancy office, suitable to the complainant needs as a person with a disability, either within the Regional Hospital or in the nurses home. In the absence of an available office there is a requirement under the Section 16(4)(b) of the Act to adapt premises to meet her needs. It was submitted by the respondent that if they left the complainant in the office in the Regional Hospital it would have a disproportionate financial consequence for the respondent. I cannot accept this argument. I am satisfied that the adaption of an office in the Regional Hospital campus would not have imposed a disproportionate burden on the respondent given the overall budget for the Regional Hospital.

5.17 In relation to the promotion panel it is the complainant's case that she was not appointed in March 2009 and at the same time the other successful candidates because of her disability. She submitted that she came no 51 on the panel and had an expectation that if she came in the first 59 that she would be appointed to Grade 1V level. She said that all of the medical secretaries were reappointed to their posts except her. She said that the person who came no 54 was appointed to her post of medical secretary in the Regional hospital. The respondent submitted that the first 50 successful applicants were appointed in March 2009 and the further appointments including the complainant were made in December 2009 and in total 81 appointments were made. The respondent said that not all of the appointments were made at the one time because they wanted to minimise the disruption in the Hospital as there were some staff moving out of posts. In addition, a moratorium on recruitment came into effect in March 2009 and the placement of the applicants from No. 50 onwards was referred to a third party. While the majority of the staff were appointed to the posts they previously held some were moved. I am satisfied that the complainant was not reappointed to her post as medical secretary at grade IV level because the respondent had moved her from the Regional Hospital campus to Abbeyfeale because of her disability. I note from the evidence that most of the successful staff were reappointed to the posts they held before the competition and the complainant identified a number of medical secretaries who were reappointed. Likewise I note that the person who was place below the complainant at no. 54 was appointed to the complainant's position. While I accept that the complainant was appointed to grade IV at the same time as the remaining successful applicants she was treated differently to other candidates in that she was not appointed to her post in the Regional hospital. Therefore I am satisfied that the complainant has established that she was treated less favourably than a medical secretary who did not have a disability was treated in similar circumstances, in that she was not offered her post of medical secretary at grade IV level. I find therefore the complainant has established a prima facie case of discriminatory treatment on the disability ground.

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, I find that:
(i) the respondent did discriminate against the complainant and failed to provide her with reasonable accommodation for her in accordance with Section 16 of the Acts;

(ii) the respondent did discriminate against the complainant on the disability grounds pursuant to section 6(2)(g) of the Acts and contrary to section 8(6) of the Acts in relation to her conditions of employment;

6.2 Section 82-(i)(c) of the Act provides that I can make an order for redress for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay which in this case is €71,656. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. I note the complainant's GP's evidence that her condition was exacerbated by stress caused to her. In calculating the redress and taking into account all the circumstance of the case and the impact that the failure to provide reasonable accommodation has had on the complainant, I consider that an award in the amount of €70,000 is appropriate. In accordance with my powers under section 82 of the Employment Equality Acts, I order the respondent to pay the complainant €70,000 in compensation for the effects of the discriminatory treatment. This figure represents compensation for the infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and therefore it is not taxable.

6.2 Under Section 82(e) of the Act I order the respondent to provide the complainant with a single occupancy office near toilet facilities in the Regional Hospital campus and to make arrangements for her to return to work in a position as a medical secretary as soon as such accommodation is in place and as soon as she can provide a medical certificate of her fitness.

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Marian Duffy
Equality Officer
31st July 2013