DEC-E2014-081

THE EQUALITY TRIBUNAL

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2014-081

Alistair Clews

(Represented by North side Centre for the Unemployed. NCU.)

versus

DSG Retail

(Represented by Mr Brian Foley B.L., instructed by Mason Hayes and Curran)

File reference: EE/2011/449

Date of issue: 1 December 2014

1. DISPUTE

This dispute involves a claim by Mr Alistair Clews (hereinafter referred to as “the complainant”) that he was discriminated against by DSG Retail (hereinafter referred to as “the respondent”) on grounds of disability, in terms of section 6(2)(g) of the Employment Equality Acts, 1998-2011 (hereinafter referred to as “the Acts”) when the respondent failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008.

2. BACKGROUND

2.1 The respondent employed the complainant as a salesman in a large computer retail store. The complainant who has been diagnosed with retinal pigmentosis (gradual degeneration of the retina) went on sick leave in 2010 due to deteriorating eyesight. The complainant submits that he was forced to resign a year later due to the unwillingness of the respondent to afford him reasonable accommodation in terms of section 16 of the Acts. The respondent rejects the complainant’s assertions and contends that it was not able to provide the complainant with work that could accommodate his disability. The complainant submits that the alleged treatment of him amounts to discrimination on grounds of disability contrary to the Acts.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 17 May 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned, Peter Healy, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. My investigation of the complaint commenced on 13 June 2013, the date on which the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on18 November 2013. Final submissions were received on 10 December 2013. At the hearing the parties agreed to the identities of the witnesses being withheld in this decision.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant was employed as a salesperson by the respondent company since 1997. In 2008 he noticed a change in his eyesight and contacted the National Council for the Blind of Ireland (NCBI) who advised him to have an I.T. assessment carried out, to give to his employer. The complainant submits that the respondent received this assessment but did not act. The complainants’ eyesight deteriorated further and in December 2009 he began to bump into customers and staff. In January 2010 the complainant reported sick due to his eyesight problem, but he worked with the NCBI in order to return to work.

3.2 In May 2010 the complainant submits that he contacted the respondent in order to return to work. He says he was informed that he could not return due to health and safety issues, but that the respondent would make every effort to facilitate him. The complainant submits that although the NCBI continued to work with respondent that the respondent put obstacles in his way.

3.3 The complainant says that in July 2010 that he submitted an NCBI assessment that the respondent ignored.

3.4 The complainant submits that following repeated efforts to get a response from the respondent that in June 2010 a H.R. representative from the respondent company met with him in his home to discuss his situation. The complainant says the H.R. rep assured him that the company would do everything possible to get him back to work, but that as he could no longer do the job that the company was not legally obliged to do anything. The H.R. rep did however extend the complainants sick pay for a few weeks until the situation could be resolved.

3.5 The complainant submits that, in August 2010 the NCBI (in agreement with the respondent) set up a visit to the complainant’s workplace but that appropriate representatives for the respondent did not attend on the day. The complainant submits that a suitable work area, free from clutter, was identified at that meeting.

3.6 The complainant submits that in August 2010, without warning, the respondent stopped paying his wages despite previous assurances that this would not happen. He further submits that the respondent informed him he would be on sick leave until he resigned.

3.7 The complainant submits that the respondent had deployed delaying tactics over the following months, in that he continued to contact the respondent about steps that could be taken to return to work but that the respondent did nothing. He says that eventually, in February 2011, two meetings where arranged with the respondent in the NCBI and the complainants workplace. Following these meetings a trial was agreed whereby the complainant could return to his workplace and explore roles and duties. The complainant submits that at the trail it was identified that he could carry out many of his old tasks and a few new ones, but that his requirement for particular computer software to assist with his vision problems seemed to be a problem for the respondent. The complainant submits that in March 2011 a further trial was arranged but the respondent failed to make available required hardware, causing the complaint to walk out of the trail due to his frustrations.

3.8 The complainant submits that also in March 2011 an appointment was made to see the company doctor but that the HR rep failed to facilitate this. In May 2011 a final meeting took place with the HR rep at which the complainant accused the responded of negligence.

3.9 Ultimately the complainant submits that due to the respondent’s delaying tactics, when dealing with his condition, he was forced to resign.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent rejects the complainant’s assertions. They submit that they were doing everything in their power to create a new position for the complainant as he was unable to carry out the position he was recruited for.

4.2 The respondent submits that in 2008 when the complainant first made the respondent aware that he was having issues with night vision that he was accommodated with a 7.30am shift pattern. In 2008 the respondent says that the NCBI assessment given by the complainant to his manager was taken by the manager to relate to IT equipment the complainant would be using in his home as the complainant was able to use the existing in store systems by maximising the font sizes. They further submit that the manager discussed the complainants disability with him on a regular basis and that as the complaint did not raise the issue of the assessment again, nothing more was made of it.

4.3 In January 2010 the complainant was signed unfit to work by his G.P., and in April 2010 the NCBI wrote to the respondent stating that complainant would be able to work but that his working environment should be as uncluttered as possible. The respondent submits that this requirement was a significant consideration for the company as the store involved was extremely busy with ten times the amount of customers as their other stores. The respondent says it then offered alternative locations to the complainant. The respondent submits that at a meeting in May 2010 the complainant confirmed that he would not consider other locations. These other locations included an offer of a job in customer service where a positon answering phones and providing administration could be made available. At that meeting the respondent advised the complainant that the health and safety risks in his existing workplace were seriously hindering his return to work.

4.4 The respondent submits that at no time has the NCBI completed a work place assessment particular to the store in question. In April the respondent received a report from their own Occupational Doctor who clarified that it would be unsafe for the complainant to return to a position on the shop floor.

4.5 The respondent submits that the complainant required the company to create a new position for him which the company was endeavouring to do, however this new position would require the complainant to be desk based. They submit that there was no safe place for a desk in the location required by the complainant. They submit that the complainant’s representatives declined invitations to visit the store and gain an understanding of these difficulties.

4.6 The respondent submits that in September 2010 the complainant approached his manager about making his position redundant. The manager responded that it was not a redundancy situation and suggested a cashier job but that the complainant declined as he said he would not be able to carry out such a role.

4.7 The respondent says the company seriously explored the possibility of location some customer service work to the complainant store but that the Health and safety risks were too great. Specifically, access to the only suitable area was through a busy warehouse.

4.8 The respondent submits that the complainant insisted on full time work only, although happy to be phased in on a part time basis.

4.9 The respondent submits that the complainant walked out of a trail due to frustration regarding the unavailability of a required monitor.

4.10 The respondent submits that apart from the health and saftey considerations, the other serious hindrance in getting the complainant back to work was the technology required to do any of the tasks created for the complainant. They say that the particular software required by the complainant to accommodate his disability presented significant technical challenges and a serious delay to returning the complainant to work.

4.14 The respondent submits that it made every effort to assist the complainant and in all of the circumstances it could not be found to have failed to afford him reasonable accommodation.

4.15 The respondent submits that an initial delay in dealing with the complainant was caused by a change in H.R. staff at the company. The respondent says that the process may have taken longer to resolve then the complainant would have liked but that this was because the company was faced with a complex situation where a satisfactory solution proved very difficult to identify.

CONCLUSIONS OF THE EQUALITY OFFICER

5.1. 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 complainant was discriminated against regarding his conditions of employment and whether the respondent failed to provide reasonable accommodation in order to enable him 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.

5.2 The complainant has alleged that he was discriminated against on the grounds of his disability by the respondent. Disability” is defined in Section 2 of the Acts as meaning –

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

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”.

It is clear that the complainant is suffering from a disability as defined under the Acts and this is not contested.

5.4 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.

5.5 An employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. 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.

(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.

5.6 In relation to the practical requirements and obligations placed on employers The Labour court has found in Humphreys v Westwood Fitness Club [2004] E.l.R. 296 that:.
“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered.The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable.The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions."

5.7 I must also consider if the respondent provided appropriate measures or not. 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.[1]

In this case in the early stages of the complainant’s disability ( in 2008) the respondent adjusted his hours, in a manner that showed consideration of the complainants needs. I note that the complainant at all times insisted on a full time position.

5.8 In the instant case the complainant was employed as a sales person. His manager attended the hearing and gave an uncontested explanation of the role of a salesperson which inherently requires they be extremely proactive in identifying potential clients that enter the store in order to meet mandatory sales targets. Based on the complainants submission alone when he states that he was unable to move around without bumping into members of the public, it’s clear that there were significant health and safety issues. The respondent in this case had independent advice on the complainant’s capacity. They were advised that the complainant could return to work if his working environment should be as uncluttered as possible. The respondent took the decision in May 2010 that the complainant was not fully capable of undertaking the duties attached to his position having regard to the conditions under which those duties are performed. There is no evidence of them having involved the complainant in this decision or of them considering the independent medical advice, at that time in May 2010.

5.9 The respondent submitted that, in February 2011, it offered the complainant other roles in the organisation but that the complainant refused them because the location did not suit his commuting needs. At the hearing the complainant could not recall being offered these roles but had strong views on their unsuitability from a commuting point of view. I accept the respondent’s statement that the complainant was offered other roles. I note that the other locations were within reasonable distance of the complainant preferred location but do not dispute the complainant’s contention that commuting represented a problem for him. However, I find the respondent’s presentation of these locations as reasonable and demonstrated significant effort on their part to provide alternatives to the complainant.

5.10 It is clear that, eventually, the respondent did give serious consideration to other roles that the complainant could take in the organisation, but what needs to be explained here is the long delay. Both parties have provided timelines of the events between May 2010 (when the complainant requested to go back to work) and May 2011 (when the complainant resigned). Both parties are largely in agreement regarding the sequence of events that unfolded. Having considered documentation provided by the respondent I find the following to be the relevant facts:

• The respondent was in possession of independent professional advice of the complainant’s capacity in May 2010.
• There is no evidence that the respondent seriously considered this advice until February 2011.
• Ultimately, there is evidence that the respondent acted correctly when it offered the complainant alternative roles in February 2011, however at this point the complainant had been away from the workplace since his request to return for nine months and without pay for six months.
• The respondent submits this delay was “not discrimination but due to an internal situation that created an unfortunate time lapse in dealing swiftly with the case.” Regardless of the intent of the respondent it is clear that the compliant was forced to remain away from the workplace due to the delay of the respondent in giving consideration to reasonable accommodation.

I am cognisant that this was an extremely distressing period for the complainant and that the lack of response from the respondent must have exacerbated his distress throughout the year in question.

5.13 I find that,

• The respondent’s length of delay in making adequate enquiries so as to establish fully the factual position in relation to the complainant’s capacity and the circumstances of the delay were unacceptable and constitute failure to provide reasonable accommodation.
• The complainant had not been allowed a full opportunity to participate at every stage of the process.

DECISION OF THE EQUALITY OFFICER.

6.1 I have concluded my investigation of the complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that the respondent failed to provide appropriate measures that would allow the complainant to continue to be employed by them.

6.2 Section 82 (i) (c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82 (4) is two years pay. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate

6.3 I order the respondent to pay the complainant €14,000 which I consider to be a fair and equitable figure in compensation for the effect of the discriminatory treatment suffered. This figure represents compensation for infringement of his rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.

_______________________________

Peter Healy

Equality Officer

1 December 2014

'Footnote'

[1] EDA0413