EQUALITY OFFICER'S DECISION NO: DEC-E/2014/092
PARTIES
A Worker
(Represented by the CPSU)
Vs
A Government Department A
&
A Government Department B
FILE NO’s: EE/2011/667 & EE/2011/753
Date of issue: 18th of December, 2014
1. Dispute
1.1 This dispute involves a claim by the complainant against the respondents that she was discriminated against on grounds of disability in terms of section 6 of the Employment Equality Acts, 1998 to 2008 and contrary to section 8 of those Acts, in relation to her conditions of employment and in relation to a failure to provide her with reasonable accommodation.
2. Background
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on the 20th of September, 2011 alleging that the above respondent’s had discriminated against her on grounds of disability when she was removed from the payroll of Government Department A during a period of sick leave and who failed to accommodate her with a transfer to a location nearer to her home.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case, on the 12th of December, 2013 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 79(1) of the Acts and as part of my investigation I proceeded to a Hearing on the 10th of October, 2014. Final correspondence in relation to this matter took place on 11th of November, 2014.
3. Summary of complainant’s case
3.1 The complainant submits that she was employed as a Staff Officer by the First named respondent in their Dublin Office.
3.2 It is submitted that the complainant was diagnosed with Breast Cancer in February, 2008 for which she received treatment. It was agreed that the complainant could work from home every second week while undergoing chemotherapy taking sick leave on every other week. This took place in July 2008 and October 2008
3.2 At end of October, 2008 the complainant went on full-time sick leave on beginning radiotherapy.
3.3 It is submitted that following the treatment which the complainant had undergone for Breast Cancer she developed an inflammatory disease in her knees which meant that she was unable to travel from her home in Mullingar to work in Dublin.
3.4 It is submitted that the complainant submitted medical certificates to the first named respondent indicating that due to her reduced mobility resulting from an inflammatory disease in her joints she was unable to travel to work in Dublin.
3.5 The complainant contacted the CPSU and sought a priority transfer to Mullingar based on her inability to travel to Dublin. The CPSU sanctioned the transfer in May 2010 and the complainant was moved to the top of the transfer list.
3.6 In November 2010, Dr. M of the Civil Service Occupational Health Department (CSOHD) wrote to HR in the first named respondent’s HR Unit indicating that the complainant was unable to return to work in Dublin due to pain and immobility in her knee joints but that she would be fit to return to work if she were in an area local to her home.
3.7 A reply issued from the first named respondent two weeks later advising the complainant that, as she was not in a position to resume duty with the respondent it was intended that she would be removed from the payroll with effect from 1 February, 2011 unless she was in a position to return to work before then.
3.8 The complainant wrote to the Equality Unit of the second named respondent in January 2011 requesting that they assist in the transfer of the complainant to Mullingar or Longford and advising that she would pursue an Equality case on grounds of disability if she was removed from the payroll by the first named respondent.
3.9 Due to work done by the first named respondent’s HR, the complainant was facilitated with a temporary transfer to the Prison Service in Longford in late March 2011. The complainant had been removed from the first named respondent’s payroll in February, 2011.
3.10 It is submitted that the first and second named respondents discriminated against the complainant and failed to accommodate her by removing her from the payroll in early February 2011 until late March 2011 and for which she was not reimbursed.
4. Summary of Respondent’s case
4.1 It is submitted that the complainant was employed by the first named respondent as a Staff Officer in their Dublin Office.
4.2 It is submitted that the complainant, in May 2008, was requested to attend a meeting with HR due to a longstanding issue of non-reconciliation of her flexi-clock which had resulted in a large deficit of hours worked.
4.3 The complainant advised the respondent at this time that she was unable to attend the meeting on the suggested date due to a hospital appointment relating to her treatment for Breast cancer with which she had been diagnosed in February of that year. This was the first indication received by HR that the complainant was sick.
4.4 During the period July 2008 and October 2008 the first named respondent’s HR Unit, on the advice of the complainant’s consultant, agreed that the complainant could work from home every second week while undergoing chemotherapy taking sick leave on every other week.
4.5 At end of October, 2008 the complainant went on full-time sick leave on beginning radiotherapy.
4.6 On 2nd of February 2009 the complainant wrote to her employer stating that she hoped to be in a position to return to work after Easter and that her oncologist had recommended that she be facilitated in working from home for a few months as she was not able to commute to her place of work in Dublin.
4.7 The first named respondent replied to the complainant on 9th of February, 2009 advising that she could not be accommodated in her request to e-work at this stage. In the Departments view a person on long term sick leave should not be asked to work until passed fit to do so by the CMO. At that stage the Department had no indication that the complainant was fit for work.
4.8 Following this the complainant continued to supply medical certificates stating that she was unfit for work.
4.9 The complainant was referred to the Chief Medical Officer (CMO)’s office in October 2009 and she was requested to forward a Doctor-to-Doctor report to the CMO.
4.10 The CPSU wrote to the first named respondent on 4th of December, 2009 requesting that the complainant be facilitated with a transfer nearer to her home and stating that due to a lack of vacancies they had been unable to facilitate her with a transfer. The first named respondent replied on 14 December, 2009 stating that it was awaiting the advice of the CMO on the complainant’s condition and a prognosis for her return to work. The complainant remained on sick leave during this period.
4.11 The CMO’s advice received on 4 March, 2010 stated that the complainant was fit to return to work but that the commute to Dublin would be very difficult for her. The report stated that a commute to an office based in Tullamore or Mullingar would be particularly suitable and referred to the fact that the complainant had been granted priority status on the transfer list. The first named respondent only has offices in Dublin and Cavan and so it was not within its remit to transfer her to a location nearer to her home.
4.12 In April 2010, the CPSU forwarded a letter dated 13 April, 2010 which they had sent to the Department of Education seeking a transfer to Mullingar for the complainant. On 21 April, 2010 the first named respondent’s Personnel Officer spoke with the Department of Education but was told that no vacancies were anticipated in the Mullingar Office for the foreseeable future.
4.13 Following this the complainant remained on certified sick leave and HR referred her case again to the CMO and the complainant attended for an appointment on 4 May 2010. The CMO’s report supported the complainant’s request for a transfer as it was felt that she was unable for the commute to Dublin but was fit to return to a location nearer to her home. The option of returning to work on a reduced hours basis was discussed with the complainant who indicated that she needed to work full-time for financial reasons.
4.14 On foot of advice from the CMO the first named respondent invited the complainant to a meeting to discuss the options available to her. At this meeting the complainant indicated that she would forward Oncologists report for referral to the CMO. On 29 June, 2010 the complainant was again requested to forward the Oncologists report.
4.15 Following receipt of the Oncologists report the complainant was again seen by the CMO on 17 November, 2010 and the first named respondent was again advised that she was still unable to commute to Dublin but would be fit to work in a location nearer to her home.
4.16 As all efforts to facilitate a transfer for the complainant had been unsuccessful the first named respondent was obliged to consider the retention of the complainant on pension rate of pay. The first named respondent only has offices in Dublin and Cavan and so it was not within its remit to transfer her to a location nearer to her home.
4.17 Payment of Pension Rate of Pay is subject to the condition of reasonable prospect of a return to duty. As there was no indication that attempts to secure a transfer for the complainant would be successful in the future the first named respondent put the complainant on notice, in November 2010 that it was intended to remove her from the payroll if she had not resumed work by February 2011.
4.18 The complainant was removed from the payroll on 4 February, 2011 and remained off Payroll until her transfer to the Department of Justice on 21 March, 2011.
5. Conclusions of the Equality Officer
5.1 Preliminary Jurisdictional Issue- Correct respondent
5.1.1 The first matter I must determine is whether the claim is correctly taken against both respondents. The complainant has named two respondents to her claim. The first named respondent was the complainant’s employer during the period encompassed by the claim. The first named respondent accepts that it was the complainant’s employer for the relevant period and there is no dispute in respect of the inclusion of the first named respondent as respondent to the claim.
5.1.2 The second named respondent submits that it is incorrectly named as respondent to this claim. The second named respondent submits that it has a role in advising Departments on HR policies including equality matters but that the Public Service Management Act grants responsibility for the implementation of these policies to each Secretary General or Head of Office.
5.1.3 The second named respondent submits that it has not located any communication in relation to this particular case and that it does not have any capacity to instruct Departments to act in a particular way.
5.1.4 It emerged at the hearing that the complainant had never been employed by the second-named respondent but that she had named the second named respondent as party to the claim due to its responsibility for monitoring equality policy across the Civil Service
5.1.5 The terms ‘employer’ and ‘employee’ are defined by Section 2 of the Employment Equality Acts, 1998-2008 as follows –
" 'employee'...means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment",
" 'employer'..... means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or where the employment has ceased, entered into or worked under) a contract of employment",
" 'contract of employment' means....
(a) a contract of service or apprenticeship......
whether the contract is or implied and, if express, whether oral or written".
5.1.6 It is clear from the evidence adduced that the complainant was at all times an employee of the first named respondent and that the first named respondent was responsible for the payment of her salary at least until February 2011 when she was removed from the payroll. I am thus satisfied that the first named respondent is to be regarded as her employer for the purposes of the Act.
5.1.7 In addition, it is clear from the evidence adduced at the hearing that the second named respondent did not have any employee relationship with the complainant and that she sought to name them as respondent due to their advisory role in equality matters. I am satisfied from the evidence adduced that the second named respondent is not the complainant’s employer and is not correctly named as a respondent to this claim. Thus, having evaluated all of the evidence adduced by the parties I find, on balance, that the first named respondent was the complainant's ‘employer’, in terms of Section 2 of the Acts, for the period encompassed by her complaint and is the correct respondent to her claim.
5.2 Preliminary Jurisdictional Issues- Time Limits
5.2.1 The complaint form submitted by the complainant is dated 21st of September, 2011 according to its date received stamp. However it has been submitted that the claim form was hand delivered to the Tribunal on 20th of September, 2011 and so the Tribunal accepts that the date of the complaint is 20th of September, 2011. The last date of discrimination as indicated on the claim form is 20th of March 2011 which is the day before she was restored to the payroll of the Prison Service having been removed from the payroll of the first named respondent in February, 2011.
5.2.2 Section 77(5) of the Acts provides as follows:
“(a) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
5.2.3 If the last date of discrimination is to be taken as 20th of March 2011, then the last date for submission of the complaint would be 19th of September, 2011 in order for the complaint to be considered to fall within the 6 months.
5.2.4 In the present case the discriminatory act which is the subject of the complaint is the removal of the complainant from the first named respondent’s payroll. This took place in February 2011 and continued for the duration of the period that complainant was off the respondent’s payroll. The complainant was restored to payroll when she transferred to the Irish Prison Service on 21st of March, 2011.
5.2.5 As the discriminatory act complained of is the removal of the complainant from the payroll, the last date on which this occurred was on the day before the complainant was returned to the payroll i.e. the 20th of March, 2011. Thus the complaint is 1 day outside of the six month’s time limit.
5.2.6 Section 77(5)(b) of the Employment Equality Acts 1998 to 2011 provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.
Section 77 (5) (b) states:
“On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”
In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows:
5.2.7 "The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".
5.2.8 I am also taking into account the Labour Court decision in the case of Elephant Haulage Ltd v Mindaugas Juska EET082 where the Court reiterated its view (expressed for example in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426)), albeit under different legislation (Organisation of Working Time Act) that "That in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd." In this regard the Court held that there must be a causal link between the circumstances cited and the delay and that the claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim in time. The Labour Court went on to state that the "length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time."
5.2.9 It is accepted by both parties that the complainant was diagnosed with and received treatment for cancer and that following her treatment for cancer, developed an inflammatory disease of her knee joints which resulted in reduced mobility. The complainant has produced medical certification that she was on long term sick leave during this period.
5.2.10 In this case the complaint was referred 1 day outside the time limit. The complainant has stated that the delay was due to illness which resulted from a complication from medication for her previous cancer treatment. Therefore, I am of the opinion that the complainant has shown reasonable cause for the delay.
5.2.11 In addition, I must consider whether the respondent has suffered any prejudice by the delay in submitting the complaint. The Tribunal wrote to the respondent on 3rd of November, 2014 inviting them to submit any comments in relation to the application for an extension of time. In a letter dated 11th of November, 2014 the respondent indicated that it had no observations or comments to make on the matter and was awaiting the Tribunals decision in the matter. I am thus satisfied that the respondent was not prejudiced by the delay in submitting the complaint.
5.2.12 In the circumstances where the complainant was on long term sick leave from October 2008 to March 2011 due to treatment for breast cancer and then due to an inflammatory disease of her joints which she developed as a result of the cancer treatment, I consider that to be reasonable cause for a delay in making this claim. As the claim was made within twelve months of 20th of March, 2011, I find that it is in time in accordance with section 77 (5) (b) of the Employment Equality Acts.
6. Conclusions of the Equality Officer
6.1 The issue for decision by me now is whether or not the complainant was discriminated against on grounds of her disability in relation to her conditions of employment in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2008 and whether the respondent failed to provide her with reasonable accommodation for her disability. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
6.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.
6.3 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
6.4 Disability Ground
6.4.1 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts. Disability” is defined in Section 2 of the Acts as meaning –
“(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”.
6.4.2 The respondent does not dispute that the complainant is a person with a disability for the purposes of the acts. The complainant advised the hearing that she had been diagnosed with breast cancer in February 2008 and that she had advised the respondent of this in May 2008. The complainant as a result of her treatment for breast cancer then developed an inflammatory disease in her knee joints which caused her to have reduced mobility. The complainant submitted a number of medical reports at the hearing in support of this assertion.
6.4.3 The complainant submitted to the Tribunal medical certificates from her own doctors and medical reports from the Civil Service Occupational Health Department (CSOHD) indicating that she was unfit for work due to an inflammatory disease of her knee joints. Based on the totality of the evidence presented I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008.
6.5 Discriminatory treatment and failure to provide reasonable accommodation
6.5.1 The complainant when questioned as to whether she had advised the second named respondent of her condition stated that she had advised the respondent in May 2008 that she had been diagnosed with breast cancer. The complainant stated that she had received treatment for breast cancer and as a result of this treatment had then developed an inflammatory disease of her knee joints which resulted in reduced mobility.
6.5.2 The complainant advised the hearing that she had remained on sick leave up to February 2011 at which stage she was removed from the respondent’s payroll. The complainant went on to state that it was due to this inflammatory disease that she was unable to commute to work in Dublin and stated that although she was deemed fit to return to work this was on the condition that she be transferred to a location nearer to her home, where she could avoid the daily commute to Dublin.
6.5.3 The complainant is submitting that she suffered discriminatory treatment when she was removed from the first named respondent’s payroll for the period February, 2011 to 20th of March, 2011 and that they failed to provide her with the reasonable accommodation of a transfer to a location nearer to her home. The complainant stated that this request for reasonable accommodation had been supported by medical reports from her GP and from the CSOHD.
6.5.4 The first named respondent advised the hearing that the complainant had notified them in May 2008, that she had, in February of that year, been diagnosed with breast cancer. During the period July 2008 and October 2008 the respondents HR, on the advice of the complainant’s consultant, agreed that the complainant could work from home every second week while undergoing chemotherapy, taking sick leave on every other week. At end of October, 2008 the complainant went on full-time sick leave on beginning radiotherapy.
6.5.5 The first named respondent advised the hearing that the complainant wrote to them on 2nd of February 2009 stating that she hoped to be in a position to return to work after Easter and that her oncologist had recommended that she be facilitated in working from home for a few months as she was not well enough to commute to her place of work in Dublin.
6.5.6 The first named respondent replied to the complainant on 9th of February, 2009 advising that she could not be accommodated in her request to e-work at this stage. In the Departments view a person on long term sick leave should not be asked to work until passed fit to do so by the CMO. At that stage the Department had no indication that the complainant was fit for work. Following this the complainant continued to supply medical certificates stating that she was unfit for work.
6.5.7 The respondent advised the hearing that the complainant was referred to the CMO’s office in October 2009 and she was requested to forward a Doctor-to-Doctor report to the CMO.
6.5.8 The CPSU wrote to the first named respondent on 4th of December, 2009 requesting that the complainant be facilitated with a transfer nearer to her home and stating that due to a lack of vacancies they had, to date, been unable to facilitate her with a transfer. The first named respondent replied on 14 December, 2009 stating that it was awaiting the advice of the CMO on the complainant’s condition and a prognosis for her return to work. The complainant remained on sick leave during this period.
6.5.9 The respondent advised the hearing that the CMO advice received on 4 March, 2010 stated that the complainant was fit to return to work but that the commute to Dublin would be very difficult for her. The report stated that a commute to an office based in Tullamore or Mullingar would be particularly suitable and referred to the fact that the complainant had been granted priority status on the CPSU transfer list. Following this the complainant remained on certified sick leave and HR referred her case again to the CMO and the complainant attended for an appointment on 4 May 2010.
6.5.10 The CMO’s report supported the complainant’s request for a transfer as it was felt that she was unable for the commute to Dublin but was fit to return to a location nearer to her home. The option of returning to work on a reduced hours basis was discussed with the complainant who indicated that she needed to work full-time for financial reasons.
6.5.11 The first named respondent advised the hearing that it had no offices in Tullamore or Mullingar but that it contacted the complainant and arranged a meeting with her to discuss the options which they could offer her in order to facilitate her return to work. The following options were discussed in with a view to facilitating the complainant in returning to work
- Relocating to an office in Beggars Bush Dublin due to its proximity to public transport links and ,
- Returning on a work-sharing basis or on a phased basis
6.5.11 The complainant’s former position which she left on sick leave in October, 2008 no longer existed and as she had not been assigned to another division it was not possible to identify a role suitable for e working for her at that stage. The complainant did not find these options suitable and she indicated at the meeting that she would forward her oncologists report for referral to the CMO.
6.5.12 On 29 June, 2010 the complainant was again requested to forward the Oncologists report. Following receipt of the Oncologists report the complainant was again seen by the CMO on 17 November, 2010 and the first named respondent was again advised that she was still unable to commute to Dublin but would be fit to resume work in a location nearer to her home.
6.5.13 The first named respondent advised the hearing that it only has offices in Dublin and Cavan and has no offices in Tullamore or Mullingar and so it was not within its remit to transfer her to a location nearer to her home. The first named respondent went on to state that that it contacted the complainant and arranged a meeting with her to discuss the options which they could offer her in order to facilitate her return to work. The first named respondent advised the hearing that it had contacted other Departments in those locations in an attempt to secure a transfer for the complainant. The first named respondent stated that it was unsuccessful in its attempts to secure a transfer to another Department for the complainant and stated that this was due to a lack of vacancies bearing in mind the moratorium on staffing numbers and added that it was also difficult to secure a transfer due to the complainant’s high sick leave record outside of her disability related sick leave.
6.5.14 The first named respondent advised the hearing that it had in April 2010 received a letter which the CPSU had sent to the Department of Education seeking a transfer to Mullingar for the complainant. On 21 April, 2010 the first named respondent’s Personnel Officer spoke with the Department of Education with a view to securing a transfer for the complainant to that Department but was told that no vacancies were anticipated in the Mullingar Office for the foreseeable future.
6.5.15 The first named respondent also advised the hearing that an offer to the complainant in June 2006 of a transfer to another Department was withdrawn as her sick leave record was not within the required limits. The first named respondent also advised the hearing that the moratorium on recruitment and restriction of staff numbers has curtailed the capacity of Departments to accept staff with sick leave records outside the prescribed limits.
6.5.16 The first named respondent advised the hearing that as all efforts to facilitate a transfer for the complainant had been unsuccessful it was obliged to consider the retention of the complainant on pension rate of pay. The first named respondent advised the hearing that Payment of Pension Rate of Pay is subject to the condition of reasonable prospect of a return to duty. As all medical reports stated that the complainant was unable to return to work in Dublin, and as there was no indication that attempts to secure a transfer for the complainant would be successful in the future, it could not be said that there was any reasonable prospect of the complainant returning to duty. The first named respondent put the complainant on notice in November 2010 that it was intended to remove her from the payroll if she had not resumed work by February 2011. The complainant did not return to work and so was regrettably removed from the payroll in February, 2011.
6.5.17 The complainant advised the hearing that she remained off the payroll until 21st of March 2011 when she was restored to payroll on commencement of employment with the Prison Service in Mullingar. The complainant had attributed this transfer to efforts made by the first named respondent in securing her a transfer but it emerged at the hearing that neither the first named respondent nor the CPSU was aware as to how this transfer was eventually effected as both the CPSU and the first named respondent had contacted various Government Departments with offices near the complainants home seeking a priority transfer for the complainant to a location near her home. All enquiries had proved unsuccessful until the complainant was contacted by the Prison Service in March 2011 and offered a temporary transfer to a Mullingar office. Neither the CPSU nor the first named respondent could say who had in fact secured the complainant’s transfer in the end but in any event the complainant was offered a transfer to the Prison Service in Mullingar.
6.6 Reasonable Accommodation
6.6.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club[1].
6.6.2 The complainant in the present case was removed from the respondent’s payroll due to her absence from work on health grounds and due to her failure to return to her position.
6.6.4 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.
6.6.5 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:
"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.
6.6.6 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent, and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Judge Dunne.[3] found that an employer that has failed to go through the aforementioned process orientated approach will have breached the requirements of the Acts, even if the employer might reasonably have supposed, without checking further, that the disability is serious enough to render the employee not fully capable of undertaking their duties under section 16(1) of the Acts.
6.6.7 The respondent, in this case, when faced with a situation where an employee was absent from work and unable to return to work due to a disability, took the decision to remove the complainant from the payroll. In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, it is clear that there was an obligation upon the respondent, in the first instance, to ascertain the level and extent of the complainant’s disability. The respondent in this case did make enquiries to ascertain the extent of the employee’s condition and referred the complainant for medical assessment to the Chief Medical Officer (CMO) in October 2009 and again in May 2010 and finally again in November, 2010. As part of this process medical reports from the complainant’s own doctor were sought and considered as well as the reports of the CMO. All reports concluded that the complainant was not fit to return to work in Dublin but would be fit to work in a location nearer to her home. The respondent in this regard, did comply with its obligations under Section 16 (3) by making enquiries to ascertain the extent of the employee’s condition and referring her for medical assessment.
6.6.8 I am of the view that the first named respondent, when it became aware that the complainant was unable to return to work , based on reports from the complainant’s own doctor and the reports of the CMO, was then obliged upon to make further inquiries into what if any special measures could be taken to assist the complainant in returning to work.
6.6.9 The complainant in this case, according to the CMO Reports and the reports of the complainant’s own doctor had stated that she would not be able to return to work in Dublin but would be fit to return to a location nearer her home in Mullingar. The first named respondent advised the hearing that based on this, the respondent offered the complainant a number of options and then arranged to meet the complainant in order to discuss what if any special measures could be taken in order to facilitate the complainant in returning to work. The following options were discussed
- · Relocating to an office in Beggars Bush Dublin due to its proximity to public transport links and ,
- · Returning on a work-sharing basis or on a phased basis
These options were not considered suitable by the complainant. As the complainant’s former position, which she left on sick leave in October, 2008, no longer existed and as she had not been assigned to another division it was not possible to identify a role suitable for e working for her at that stage.
6.6.10 The first named respondent advised the hearing that it only has offices in Dublin and Cavan and has no offices in Tullamore or Mullingar and so it was not within its remit to transfer her to a location nearer to her home. The first named respondent also advised the hearing that it had contacted other Departments in those locations in an attempt to secure a transfer for the complainant but that it was unsuccessful in its attempts to secure a transfer toanother Department for the complainant due to a lack of vacancies and also due to the complainant’s high sick leave record outside of her disability related sick leave.
6.6.11 The first named respondent advised the hearing that it had in April 2010 spoke with the Department of Education with a view to securing a transfer for the complainant to that Department but was told that no vacancies were anticipated in the Mullingar Office for the foreseeable future.
6.6.12 The first named respondent advised the hearing that it was also aware from its contacts with the CPSU that the complainant had been moved to the top of their transfer list and that the CPSU had written to various Departments with offices near to the complainant’s home in Mullingar, but that the CPSU had also not succeeded in securing a transfer for the complainant. The respondent went on to state that as all efforts to facilitate a transfer for the complainant had been unsuccessful it was obliged to consider the retention of the complainant on pension rate of pay. The first named respondent advised the hearing that Payment of Pension Rate of Pay is subject to the condition of reasonable prospect of a return to duty. As all medical reports stated that the complainant was unable to return to work in Dublin, and as there was no indication that attempts to secure a transfer for the complainant would be successful in the future, it could not be said that there was any reasonable prospect of the complainant returning to duty. The first named respondent put the complainant on notice in November 2010 that it was intended to remove her from the payroll if she had not resumed work by February 2011. The complainant did not return to work and so was regrettably removed from the payroll in February, 2011.
6.6.13 The respondent advised the hearing that alternatives were considered and discussed but that none were deemed suitable by the complainant. The complainant advised the hearing that this was the case.
6.6.14 It is clear from the totality of the evidence adduced her that the respondent, in the present case did carry out the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, by making appropriate enquiries to ascertain the extent of the employees condition, and by proceeding in consultation with the complainant to evaluate alternatives before making the decision to remove the complainant from the payroll. I am also mindful that the accommodation sought in this case was not within the power of the respondent to grant as it did not have any offices in the locations sought by the complainant.
6.6.15 In making my decision I am mindful of the Tribunals decision in Gerard Healy Vs HSE West Dec E2011-080 which states
Section 16 (4) (c) of the Acts states that "appropriate measures ... does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself" and in this claim I conclude that the complainant's travel to and from his place of work was his responsibility and not that of the respondent. Given the situation of the complainant an employer might be expected to consider transferring him to a location nearer to his home where the circumstances are appropriate and it is within their remit. However, in this case such a transfer was not within the remit of the respondent
6.6.16 Having regard to the foregoing, and based on the totality of the evidence adduced in relation to these matters, I am satisfied that the complainant in this case, was not subjected to discrimination by the respondent on the disability ground in relation to her removal from the payroll and in relation to the provision of appropriate measures within the meaning of section 16 of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2008. I find that -
(i) the complainant was not discriminated against by the first named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the Acts in relation to her removal from the payroll , and
(ii) the complainant was not discriminated against by the first named respondent on grounds of disability, pursuant to section 6(2) and contrary to section 8 of the in relation to the provision of “appropriate measures” within the meaning of section 16 of the Acts.
____________________
Orla Jones
Equality Officer
18th of December, 2014
'Footnotes'
[1] [2004] 15 ELR 296
[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)
[3] Humphreys -v- Westwood Fitness Club (2004) ELR 296