DEC-E2014-030

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC – E2014-030

Ms H

(represented by Karen Wall, Mandate)

versus

A Multi-National Retailer

(represented by Michael McGrath, IBEC)

File reference: EE/2012/136

Date of issue: 15th April 2014

Keywords: Employment Equality Acts, Disability, Failure to provide reasonable accommodation, Osteoarthritis, Colectomy - Health and Safety issues, Cost of provision of toilet for people with physical disabilities

Dispute

1.1 The case concerns a claim by Ms H against a Multi-National Retailer. Her claim is that she was discriminated against on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’]. She claims that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them.

1.2 Through her Trade Union, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 1st March 2012. On 13th August 2013 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Submissions were received from both parties and a joint hearing was held on 29th August 2013 as required by Section 79(1) of the Acts. The last piece of information requested by me was received on 28th February 2014.

Summary of the complainant’s case

2.1 The complainant has been employed by the respondent (or its precursor) since 1975. She worked in various areas before working almost solely on the Customer Service Desk for 30 years which she enjoyed very much. A chair was always available at this desk while she worked there. In 2001 she had a colectomy (removal of her colon) which meant that subsequently she had intermittent episodes of pouchitis/diarrhoea In 2005 she had two knee replacements due to osteoarthritis and therefore found the toilet facilities in the store very difficult to use as they were upstairs (no lift) and were too low. For this reason she had to walk across the shopping centre to another store. This toilet was only marginally better as she had to hoist her up and down by gripping the doorframe. At this time the respondent was revamping the store where the complainant worked and she asked whether this opportunity could be used to provide a toilet for people with physical disabilities. The store had none. She submits that the respondent acceded to her request as the store was about to trade 24/7 hours and they would need sanitary facilities for use by their disabled customers also. However the toilet was never put in. The complainant submits that she was given many and various excuses over the years as to why it was not put in.

2.2 In Spring 2009, the complainant submits that the then Personnel Manager of that store (Ms A) said that she had good news for Ms H and showed her where the disabled toilet was to go. The complainant was delighted and shortly afterwards went off on her holidays. While on holidays, she fell and broke her right femur. This necessitated surgery in France and she was flown back to Ireland by air ambulance. Ms H was a wheelchair-user for six months. She had further operations in January 2010 and July 2010. As soon as Ms H was back on her feet, she submits that she was anxious to return to return to work. She was medically certified as fit to return to work in July 2011. Her doctor recommended three conditions that would allow her to return to work:

• Return to work on a phased basis
• Her doctor stated that ‘it is imperative that she is able to sit for periods of time during her working day’.
• Access to a disabled toilet

·

2.3 In discussing her return to work, the following exchange of emails took place between Ms H and the respondent:

29th July 2011 16.42

Dear Ms H

Thank you for the email. Just to add clarity

1. The position that is available at the Kiosk is a sales position and no provision of a chair has been made, a chair would not be feasible considering the nature of the business behind the counter. To facilitate you in your need of a chair we will be in a position to facilitate you with a role at the checkouts where a seat will be provided.

2. Due to the suspension of the revamp of our store which has now been deferred to the future, the possible provision of a customer disabled toilet has also been suspended. In the interim we will allow you extra time to use the shopping centre disabled toilet.

3. To integrate you back into the business we are willing to accommodate you on retuning on a phased based over a period of weeks

If you require any further information please feel free to give me a call. I am on holidays from today but will return in two weeks

Thanks

Regards

Ms A

----------------------------------------------------------------------------------------------

29th July 2011

Dear [Ms A]

Thank you for bringing me up to date regarding my return to work. I want to make sure I have all the correct details so I can discuss same with my doctor.

If I return to my original position I will no longer have a chair but I will be facilitated with a job at the checkouts.

I will not be provided with a toilet for disabled in my workplace but will be given extra time to get to and form the public toilets in the centre.

I will be allowed to return to work on a phased basis over a period of weeks.

I would appreciate if you would let me know if I have the correct information

Yours sincerely

Ms H

2.4 As the complainant was not satisfied with this response, she raised a formal grievance. Ms H submits that working on the customer service desk is seen as a ‘plum’ job and a reward for loyalty to the company. It is not one given to inexperienced staff as greater discretion as well as knowledge of how the store operates is necessary. Therefore, Ms H submits that working on ordinary checkouts would be perceived as a demotion. Ms H states that she was restricted from lifting heavy weights so therefore this position would not be suitable. She also submits that the onus is on her employer to provide reasonable accommodation. She maintains using the toilets in the extremely busy shopping centre is not feasible for her as she also has an internal pouch (following the colectomy) and occasionally gets pouchitis which causes diarrhoea. Therefore she cannot queue for as long as a person without this particular disability. Her grievance was heard on 31st August 2011 by Mr B (Store Manager, Coonagh). Her grievance was not upheld. In their written response, the respondent reiterated the same points as the email in paragraph 2.3 except to add that the complainant’s grade was a general assistant and she could be moved to other areas of the store as per business need. The complainant appealed this decision through the appropriate internal procedures. In the appeal her union representative pointed out that she was allowed to use a chair at the customer service desk prior to her breaking her leg. He suggested that an independent health and safety inspector should make adjudication on this issue. This suggestion was ignored by the respondent. The appeal of her grievance took place on 10th November 2011 by Mr C (Store Manager, Galway). The respondent rejected her appeal.

2.5 Ms H argues that at no stage has the respondent carried out an assessment on what appropriate measures could be provided to allow the complainant to continue in the role that she enjoyed so much. She submits that they ignored her disabilities since 2005 and failed in their duty of care to one of their most longstanding employees.

Summary of the respondent’s case

3.1 The respondent refutes any accusations of discrimination. The complainant has been absent from work since 3rd June 2009. On 2nd of July 2009 the complainant met with Ms A where she explained about her operation. Hs H told Ms A that her doctor had advised her that her recovery period would be six to nine months. Over a year later on 18th October 2010, she attended a return-to-work meeting with Ms A. Ms A pointed out to Ms H that she was outside her support period and recommended that the complainant attend the Company Doctor. Ms A said the respondent would be happy to facilitate the complainant with a shorter working week.

3.2 The complainant duly attended the company doctor on 15th November 2010. The company doctor recommended that Ms H should not return to work for three months. The Occupational Health Advisor wrote to Ms A on 5th January 2011:

Health Problem

Serious injury (outside of work) to her right lower limb

Return to work date – when seen by the doctor 15-11-10 he felt that it may be 2-3 months before Ms H could consider returning to work. This time frame is now quite close and hopefully Ms H will be able to give you a return to work date soon.

The doctor has advised that a risk assessment is carried out to ensure that risk such as slippy or uneven floor surfaces in her area of operation are attended to and repaired if necessary as it is vital that Ms H does not fall again.

To support Ms H back into the business, I would advise that she returns on reduced hours with a gradual build up to her normal work pattern over a 4 week period such as 15 hours her first week, 20 hours her second week etc. Please discuss this with Ms H.

According to your health referral and the companies SYA policy Ms H has a supported period of 1 year and the store has supported her for 18 months therefore if Ms H is unable to give a return to work date soon then it is a management decision on the way forward.

I hope this information is of help to you. Should you require further clarification or assistance please do not hesitate to contact me.

The respondent points out that the Company Doctor did not recommend a seat for the complainant.

3.3 Prior to her accident in 2009, the respondent suggested accommodating Ms H by converting a shower in the staff toilets to a disabled toilet for the complainant. However she was not happy with this accommodation as the to-be-converted toilet was upstairs and there was no lift. Therefore they allowed her extra time to walk to the toilet in the shopping centre which was only 70feet away.

3.4 While the complainant was absent for two years, the customer service desk role had changed. While the complainant was working there, there were normally two people on the desk. Ms H had usually sat on a chair and dealt with customer issues on the phone or at the desk. However, while Ms H was absent, a new business practice was introduced where the phone queries were now dealt with through a call centre so the role was more sale-focussed. The respondent held a comprehensive meeting with the complainant and her Union Official on 31st August 2011. Before the meeting, Ms H and the Union Official were shown that the Customer Services Desk no longer had a seat. At the meeting Mr B explained that only buildings (which the public have access to) built after 2001 are obliged by law to provide disabled toilets. Ms H pointed out that she used to do administrative work for Ms A and suggested this role could be expanded. Mr B said that was impossible as this work has been computerised. At this meeting, Ms H’s Union Official suggested an exit package if reasonable accommodation could not be provided but Mr B said it was not a redundancy situation as the position of general assistant was still available.

3.5 In response to queries by myself at the hearing, the respondent provided a builder’s quantified estimate of the cost of a installing a disabled toilet - €22,670.70 - as well as a report from the company’s Trading Law and Technical Manager:

As a rule chairs are not provided to our colleagues who work behind the customer services desks for the following reasons:

1. The role of the customer services colleague is multi-functional and non-static. Unlike a check out operator where they remain stationary at one location to service customers, colleagues who work at the customer service desk have to access various services for our customers, not just perform cash transactions. In order for them to provide these services the colleague who works behind the counter will have to move and work between these services i.e. one minute they may be completing the lotto which is at one end of the counter and next dealing with a customer complaint which could be at the other end of the counter. The provision of a chair behind the customer service desk would become a hazard itself due to the nature of the work carried out behind the desk.

2. The customer service desk may be manned by two colleagues during busy periods. When this does happen there is insufficient space to have a chair behind the counter with two colleagues working. Working arrangements issues may also arise if one chair is provided for one colleague and none for the other colleague. Given that there is insufficient space for one due to the nature of the work carried out the provision of a second chair would make the customer services desk completely cluttered.

3. The desk dealing does not permit the customer service desk employee to sit in a position that would be ergonomically correct as the operation cannot place his/her legs under the desk. As a result the customer service desk colleague would have to continuously stretch to reach the cash register if he or she was sitting which may result in upper and lower back strain problems in the further. In addition to this, the constant turning and twisting that would be involved if a colleague were to be in a seated position while at the same time access services such as cigarettes which would be directly behind the cash register while at the same time accessing lotto which would be on either side of the cash register means the overall layout of the desk is not ergonomically correct for a colleague to be seated which they carry out theses tasks.

4. The provision of a chair could potentially block firefighting equipment or means of escape during emergencies

On Friday the 6th of September I visited [complainant’s workplace] to ascertain if the above issues were present should a chair be provided behind the desk and I can confirm each one of the points noted above would a cause of concern if one was provided.

Therefore in line with the business reasons noted above I can confirm a chair should not be placed behind the customer service desk as it would pose a health and safety risk to those colleagues who work behind the desk.

Conclusions of the Equality Officer

4.1. Section 6(1) of the Act provides that discrimination shall be taken to occur where on any of the discriminatory grounds mentioned in subsection (2) one person is treated less favourably than another is, has been or would be treated. The discriminatory ground in this case is disability. Therefore, the issue for me to decide is whether the respondent failed to provide reasonable accommodation in order to enable her to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.2 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 Act. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.

4.3 Disability is defined in Section 2 of the Acts:

‘‘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;

For the purpose of this case Ms H has two disabilities within the meaning of the above definition

(i) A colectomy - one of its sequelae being pouchitis

(ii) Osteoarthritis which has the consequence of reduced mobility especially after breaking her right femur

The complainant made the respondent aware of both disabilities.

4.4 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee. Regarding this Section 16 (1) of the Acts states:

Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….

(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(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(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.

4.5 The seminal case on reasonable accommodation is determined by the Labour Court - A Health Club and A Worker. It is worthwhile to quote the relevant paragraphs:

This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground 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. [my emphasis][1]

Without doubt, this assessment is an onerous process for employers. It is worth bearing in mind why this burden is placed on them. Recital 16 of the relevant EU Directive states ‘the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination’.[2]

When the complainant sought to return to work in 2011 her doctor made three requests for reasonable accommodation:

• That she could return to work on a phased basis
• That she would be enabled to sit for periods of time during her working day
• Access to a toilet for people with physical disabilities

4.5 The respondent was happy to provide the first accommodation i.e. returning to work on a phased part-time basis. The respondent has a difficulty with providing a seat behind what was the customer service desk. This is despite the fact by the admission of the current manager of the store, the height of the desk has not changed and occasionally a stool is made available there for pregnant women. I accept the customer service role has changed since the complainant’s accident but the complainant did not object either from the respondent’s minutes of the meeting of 31st August 2011 or in direct evidence at the hearing to taking on new responsibilities. It must also be remembered that Ms H’s doctor merely requested that her patient sit for some of the day. I note that the Health and Safety report was only conducted on my instigation and does not address the complainant’s specific health and safety issues. Clearly Ms H’s doctor is the expert on her patient’s health and safety but she was not consulted. The final sentence of that report (see paragraph 3.5) is very telling – ‘Therefore in line with the business reasons noted above I can confirm a chair should not be placed behind the customer service desk as it would pose a health and safety risk to those colleagues who work behind the desk.’ [my emphasis] Of course, the prerogative of any commercial enterprise is to make a profit but business reasons should not be confused with health and safety concerns. It makes business sense for the respondent to require employees at the customer service desk to multi-task and the respondent has decided that employees do this more effectively while standing but this is a different (albeit not mutually exclusive) motivation to concern for employees’ health and safety.

4.7 I do not find the suggested accommodation of working on a checkout to be reasonable. This would require Ms H to lift, for example, large boxes of detergent or sacks of potatoes when she is medically restricted from lifting significant weights. As the Labour Court has found in An Employer and A Worker the reasonable accommodation test is an objective one:

The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.[3] [my emphasis]

Therefore I find that the respondent has not explored the request of allowing Ms H to sit for some of her working day thoroughly enough.

4.8 For many years the complainant has requested access to a toilet for people with physical disabilities. I accept her contention that being allowed use the one in the shopping centre which was not kept clean and where there were frequent queues is not an appropriate measure as a long-term solution. The respondent freely admit that had this supermarket been built after 2001 it would be required to provide access to a wheelchair-accessible toilet under Part M of the Building Regulations 2000. Under Section 16 (3) of the Acts an employer is not required to provide appropriate measures if the accommodation would impose a disproproportionate burden on the employer. Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose such a burden:

(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.

Subsequent to the hearing (on my request) the respondent provided a quantified costing of installing a toilet for wheelchair users which would also suit the ambulant disabled like Ms H. That cost is estimated at €22,672.70. The respondent is one of the world’s largest retailers and its revenue in Ireland for the last reporting period was £2,315million (sterling). Therefore, I find that it does have the financial resources to install sanitary facilities for people (which may be used for customers as well as staff) with varying physical disabilities in the store where Ms H works.

4.9 To avail of the Section 16(3) defence an employer must show genuine engagement with the process of finding effective and practical measures to allow an employee to return to work. The report by the Occupational Health Advisor (see Paragraph 3.2) is cursory. It only deals with Ms H’s broken leg. No mention is made in it of Ms H’s other disabilities. Both the grievance (where Ms H repeated her request for appropriate measures) and the appeal of the grievance appear to have been tick-box exercises. They do not demonstrate engagement by the respondent of real attempts to provide reasonable accommodation.

4.10 To reiterate, the complainant’s doctor certified her as fit to go back to work if three appropriate measures were provided. One was given readily but a ‘just say no’ approach seems to be taken to other two measures. The respondent was not pro-active in exploring other appropriate measures to accommodate Ms H’s return to work. Neither am I satisfied that the suggestions by Ms H for reasonable accommodation would have placed a disproportionate financial burden on the respondent. Therefore, it cannot avail of the statutory defence. Because of the effluxion of time since the complainant lodged this complaint, I find that compensation is the appropriate form of redress.

Decision

I have concluded my investigation of Ms H’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(ii) the respondent has failed to provide appropriate measures that would allow the complainant to return to work

Therefore, I find for the complainant.

In accordance with Section 82 of the Act, I order the respondent:

(a) pay the complainant €30,000 (the approximate equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms H’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(b) conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how employees with disabilities are treated.

_______________

Orlaith Mannion

Equality Officer

Footnotes:

[1] Determination No. EED037

[2] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303, 02/12/2000 P.0016 -0022

[3] EDA0413

DEC-E2014-030