EDA147

The Complainant was involved in two road traffic accidents at the time of registration and a further two since then. She suffers from back and neck pain which is exacerbated by typing and writing. She cannot work in areas where there is contact with the public as she suffers from anxiety in such situations.

The Complainant returned to work on 16^thJune 2008 following an absence of two years. The subject-matter of her current complaints relate to occurrences surrounding her return to work and the duties to which she was assigned on her return. The Complainant also claimed that she was subjected to victimisation contrary to Section 74 of the Acts when the Respondent, having appealed the Equality Officer’s Decision of 2007, subsequently withdrew its appeal on the day of the Labour Court hearing. She also claims to have been victimised by being reprimanded for not giving notice of her return to work on 16^thJune 2008. Furthermore the Complainant claimed that she was also singled out for special adverse treatment in relation to flexi-time arrangements in August 2010. She claimed that she had suffered a loss of increments due to the sick absence caused by the anxiety and stress in pursuing her claim. Finally, she says that her brother was unsuccessful in obtaining employment through the Respondent and that this is further evidence of victimisation.

Summary of the Complainant’s Case

At the outset of the hearing Mr David Bradford on behalf of the Complainant, informed the Court that certain of the previous allegations of victimisation were not being pursued before the Court in its appeal. These related to the Respondent’s withdrawal of its appeal of the 2007 Equality Officer’s Decision, loss of increments and the reference to her brother being unsuccessful in obtaining employment through the Respondent.

Mr Bradford outlined the case for the Complainant. He said that on her return to work with the Respondent on 16^thJune 2008 the Complainant was met with total negativity from staff and supervisors alike. She contended that she was verbally reprimanded in an aggressive manner by the HR Manager for not giving prior notice of her return to her post and that he requested her to leave the premises and informed her that it would be necessary for the Chief Medical Officer (CMO) to meet with her to certify her as fit to return to work.

On 29^thJuly 2008 the CMO certified her fit to return to work. The Complainant stated that she had made enquiries regarding a transfer from switchboard duties on a number of occasions prior to her going out on sick leave and also following her return in 2008, however, she was placed back on switchboard duties.She claimed that she was the only Clerical Officer in the organisation who was assigned solely to switchboard duties and therefore she was not gaining experience as a mainstream Clerical Officer and this she alleged impacted negatively on her prospects for promotion.She stated that on her return to work in 2008, due to stress and anxiety and after her previous case to the Equality Tribunal, she requested not to be put back on the switch and to be given mainstream Clerical Officer duties, the HR Manager’s response was "we have nowhere else to put you".

In March 2009 the Complainant worked extra Clerical Officer duties as operated by other staff covering the switch, however, six months later she had to relinquish these duties as the voice-activated computer package “Dragon Naturally Speaking Version 10” had not been set up for her.

The Complainant stated that in 2010 following correspondence with the Respondent’s Disability Liaison Officer relating to her needs she identified assistive equipment which would assist her in completing her duties as the Dragon Softwear was problematic. She again sought a transfer - to the Business Support Unit.

The Disability Liaison Officer asked her to research items she required to carry out her job. She identified the two items – anergonomic soft touch keyboard and a zero tension mouse. However, she stated that both the provision of the assistive equipment and a transfer to another business area were denied.

Mr Bradford stated that the STAR computer system operated in the Respondent’s organisation was not compatible with the Dragon assistive technology system which she used and that management deemed it too expensive to integrate it with the STAR system. The Complainant argued that the Respondent made no attempt to establish what requirements were necessary to make reasonable accommodation for her disability until 2011 when it offered to engage expertise to assist with her return to work, as she was absent on sick leave at this time she was therefore unable to attend a meeting with the expert. The Complainant states that this offer was only made subsequent to the Complainant submitting a further equality claim to the Tribunal. Mr Bradford referred to correspondence dated 18^thAugust and 19^thOctober 2010 in which the Respondent stated that it had made a substantial investment in assistive technology already for the Complainant and no further investment was warranted. The Complainant submitted that as a result of this discriminatory treatment she had no opportunity for career progression.

Victimisation Claim
The Complainant also alleged that she was victimised by the Respondent. She alleged that the most recent instance of victimisation occurred in August 2010 when the HR Manager singled her out for undue supervision in comparison to other work colleagues in relation to a flexi-clock issue. She said that in her haste to leave the office in August 2010 she had omitted to clock in and out when she was attending a meeting with a Solicitor during core hours and her pre-arranged cover had failed to turn up. She was subsequently issued with what she termed a warning letter which she contended was unfair, unwarranted and disproportionate.

Summary of Respondent’s position

Mr Anthony Kerr, B.L., instructed by Chief State Solicitor’s Office, on behalf of the Respondent, stated that the Respondent was at all times aware that the Complainant had adisability withinthemeaning ofthe Acts and consequently required"reasonable accommodation". This awarenesswas sharpenedby the finding of the Equality Officer in 2007 where it was found that the Respondenthad been "misguided" in its approach to theprovision ofreasonableaccommodation.

Mr Kerr denied the allegations made by the Complainant and contended that the Respondent had provided her with reasonable accommodation to carry out her duties and had acceded to her requests for transfers. HR had met with the Complainantto
discuss theduties of ClericalOfficersinall units inthe organisation inorder toidentify
tasks and duties whichshe feltshe couldperform and the Disability Liaison Officer had liaised with her in respect of her specific requirements.

Prior toherappointment,the Respondentreceived advice from the ChiefMedical
Officer(CMO)for the Civil Serviceonthe type ofwork which might suit the Complainant.The CMO statedthat due to her medicalconditionshe could notuse a keyboard/mouse for longperiodsbutthat she hadnodifficultyusing atelephone. As aresult of the CMO's advice,the Complainant was originally assigned to the BusinessSupportUnit (BSU),whichalsoinvolved reception duties, asthis was the Unit in which
Clerical Officershad the leasttyping duties.Onthe 30th July 2001the Complainant
requested a transferfromthoseduties. The requestwas facilitatedeven though it isnot theusualpractice to grantstafftransfers fromareas inwhich theyhadonly worked a
shorttime.

Mr Kerr stated that the Complainant then workedinanumberofdifferent units and
requested transfers from some of themduetoherdisability andtheserequests were allgranted. The Respondent sourced suitable accommodationfor the Complainant, such as anorthopaedic chairand voice activatedcomputer software and, followingherreturn
fromsickleavein2004, she was allowedto commence workinghalf-days onfull pay.

Mr Kerr stated that the Complainant referred a complaint to the Equality Tribunalon the21^stApril 2005.Shethen commencedaperiod ofsick leavefrom the15^thJuly 2005 until 11^thJanuary 2006.A furtherextendedperiodofsick leave wastakenonthe 23^rdJune 2006 until 16^thJune 2008 and she was on extended sick leave from 1^stOctober 2010 until her resignation on 20^thMarch 2013.

In response to the allegations made the Respondent outlined the events giving rise to her complaint under the Acts.On 16^thJune 2008the Complainantreported for duty withoutprior notice and claimed that she was fit to returntoduty witha Doctor's note to confirm. Civil Service policy in such cases is to require the Officerto attend the CMO sothat it couldbe confirmed thatthe Officer is fit toreturnto duty and, in the Complainant's case, to ensure thatsuitable accommodationwasput in placeprior to herreturn.

Despitebeing so advised bytheHRManager,the Complainantinformed him thatshe wouldnot beproviding a Doctor's reportto the CMO asher Doctor said that it "was none of our business" and she continuedtoinsist onreturning to work without seeing
the CMO.

A Doctor's Report was eventually suppliedto the CMO. He arrangedto see the Complainant on29^thJuly 2008andfound her fit to returntoduty.Inthemeantime,
however,the Complainanthad been placed backonthepayrollwitheffectback to 16^th
June 2008.

The Complainant was required to complete a Workplace Accommodation Form in relation to any accommodation she would need in addition to those previously provided. On 14^thAugust 2008 the Complainant advised HR that she would not sign the Form as her voice-activated software was not working properly. A new software package, "Dragon Naturally Speaking Version 10", was subsequently ordered and installed. She was given a return to work date of 6th October 2008. The Complainant then informed management that she was stressed and anxious about returning to work and she requested a transfer out of the organisation. Due to the stress and anxiety report the Complainant was required to attend the CMO again before she returned to work. The CMO agreed to see the Complainant on 9^thOctober 2008. When the Complainant attended the CMO on 29^thOctober 2008 she was found fit to return to duty. She returned to duty on 10^thNovember 2008.

In January 2009the Respondent agreed to the Complainant'srequestforwork-sharing without enforcing theusualsix week notice period.On 5thMarch2009the Complainantrequestedextraduties.She wasgivenanarea of workpreviouslycarried
outbyone ofthe other Clerical Officers.On 28thSeptember 2009the Complainant
requested thatshebe relievedof those additional duties as there wastoomuchtyping
involved.That request was granted immediately.

In July2010all theClericalOfficers on switchduties wererequestedto perform
approximately fourhoursperweek of reception duties. The Complainantdeclinedand
supplieda Doctor'slettersupportingher request tobe excusedfromreception duties.
The CMO recommendedthat the Complainantbe exemptedfromreceptionduties on a temporarybasisandthat thesituation be reviewed after sixmonths.TheComplainantwas dulyinformedof this accommodation. On 1^stOctober 2010the Complainant went
onsickleave againand did not returnto duty.

By letter dated 9^thSeptember 2010 the Complainant confirmed that her voice-activated software was working almost completely to her satisfaction. She requested a transfer to the Recruitment Unit. The Respondent responded by letter dated 19^thOctober 2010 indicating that the IT Unit would examine the computer application(STARsystem) in the Recruitment Unit to ensure itscompatibilitywith the Complainant's software
package. A fewdays latertheComplainantmadeher complaint to the Equality
Tribunal.

Mr Kerr stated that theComplainant declined to engage in the processofidentifying the accommodation required for her to work in a Recruitment Unit whichprocess
included theoffer of an expert to identify therequired accommodations.

The Consultantsengaged to deliver the recruitment application project wereasked to
estimatethe costof making the STAR system fully compatible with the assistive
technologyused bytheComplainant. Due to the cost involved (€36,000 plus ongoing charges), and the fact that the Complainant had repeatedly requested a transfer out of the organisation,it was decided that the required expenditure could not be justified.

The IT Project Manager with responsibilityfor theSTARsystemadvisedthatDragon
softwaremust beused regularlyto work well.He estimated thattheDragonassistive
software supplied to theComplainantwasbetween 60%to80%compatiblewith the STARsystemandwith theadditional keyboard and mouseassistive technology required would enhancethe compatibilityand thatacost of €36,000 would be required toget Dragon fully 100% compatiblewiththe STAR system.

Victimisation Claim

Mr Kerr stated that when the Complainant reported for work on 16^thJune 2008, the Respondentfollowedthe stated and long established Civil Servicepolicythat employees seeking to returnto workafter longtermsick leave orabsencehavetobe seen by the
CMO whenreturningto work.Secondly, with regard to theComplainant’s complaint about the manner inwhichshewastreated following heromission to clock inandout, the Respondent contended thatthelettersentto herin August 2010waspart of the
normal human resource management functionand confirmedthat noactionwhatsoeverwas taken oncetheComplainantsubmitted herexplanation.

The Law

Section 16(1) of the Act provides: -

• (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
  • (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

    (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.

• (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.

In its decision this Court held as follows: -

• 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 claimant 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 is 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, s.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.

Conclusions of the Court

The Court heard witness testimony from members of Management and from the Complainant. It has carefully evaluated all of the evidence tendered together with the submissions made by both sides and documentation put in evidence.

The Court will first consider whether or not the Complainant was subjected to discriminatory treatment by the Respondent within the meaning of Section 6 of the Acts on the ground of her disability. In doing so the Court must consider whether or not reasonable accommodation or appropriate measures were provided to enable the Complainant to fully undertake the duties of the post and to allow her advance in her employment. Secondly, the Court will consider whether or not she was victimised within the meaning of Section 74(4) of the Acts.

In her submission to the Court the Complainant referred to issues which date back to 2002 and the Court noted that her previous equality claim made on 21^stApril 2005 was dealt with by the Equality Tribunal in its Decision dated 8^thMay 2007. Therefore, in accordance withHenderson v Henderson (1843) 3 Hare 100, 114(per Wigram VC), where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the parties are required to bring forward their whole case and are not permitted “to open the same subject of litigation” in subsequent proceedings and therefore the Complainant is estopped from seeking to rely on issues which were addressed in the 2007 Equality Officer Decision. The Complainant’s claim before the Court was lodged with the Equality Officer on 22^ndOctober 2010 and therefore any issues pre-23^rdApril 2010 are outside of the time limit prescribed by Section 77(5) of the Acts. In order for the Court to consider the alleged incidents which occurred outside the time limits prescribed, the Court must examine whether or not there is a causal connection/link between the alleged incidents which occurred outside the time limit, and those within the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

In Determination EDA1124,Ann Hurley v County Cork VECthis Court considered the scope of its jurisdiction in dealing with alleged acts of discrimination which occurred before the presentation of a claim to the Equality Tribunal :-

• “The decision in County Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, High Court, McGovern J. 24th July 2009, is clear authority for the proposition that a claim under the Act may be amended so as to rely on additional acts or omissions which occurred before the claim was initiated provided that the nature of the claim remains the same.”

• Request for Transfer to the Business Support Unit or the Recruitment Unit

• “As you have made us aware of your disability relating to your back and neck injury, we stand over our decision that it would not be appropriate from a Health & Safety perspective to move you to the Business Support Unit, where moving furniture, boxes, files etc. forms part of a Clerical Officer’s duties. This view was based solely on the information you provided us in relation to your disability”.

The decision to write to her on 19^thOctober 2010 without further appropriate investigation could in other circumstances have rendered the Respondent liable for a complaint of discrimination. The Court has also taken account of the fact that the Complainant requested a transfer either to the Business Support Unit or the Recruitment Unit. In her letter dated 9^thSeptember 2010 she made it clear to the Respondent that she was“not and never have limited my transfer options to B.S.U. alone”. The Respondent also considered the possibility of a transfer to the Recruitment Unit. Clerical Officer duties in the Recruitment Unit required a significant amount of typing duties and meeting the public. The Respondent had already invested in a voice-activated package (Dragon) to enable the Complainant to complete typing duties and the Disability Liaison Officer engaged extensively with her in order to assess and meet her needs. On 19^thOctober 2010 the Respondent wrote to her confirming that all reasonable requests would be accommodated. In her letter dated 9^thSeptember 2010 the Complainant had informed management that her voice-activated software was working almost completely to her satisfaction and confirmed that following her successful application to the Equality Tribunal in 2007“proper support as regards this softwear have been provided”. However, she stated that no voice-recognition package was completely accurate and sought the specialised keyboard and mouse.

In order to work in the Recruitment Unit it would have been necessary to establish the compatibility of Dragon with the bespoke computer system STAR which operated in this Unit. The Respondent in the 19^thOctober 2010 letter stated:

• “We have asked I.T. to conduct an assessment on the STAR system with respect to the compatibility with Dragon Naturally Speaking Version 10. They have advised us this may take some time. We will let you know of the outcome. On receipt of a report from I.T. on compatibility, we will discuss with senior management the possibility of a transfer for you to a recruitment unit. We cannot guarantee a transfer to you, or to any staff member.”

• “To assist you in taking up this transfer opportunity, we now wish to establish the workplace accommodations that are needed in order that you can effectively carry out the full range of Clerical Officer duties in a recruitment unit. We propose that we engage a company with expertise in workplace accommodations (in particular for people with back and neck disorders) to carry out an assessment of the proposed workstation where you will be stationed, the systems you will be using and of the Clerical Officer duties to be assigned.”

At the time the Complainant submitted her claim under the Acts the Respondent were not aware of the estimated costs involved but was in a process of exploration. The Complainant was out on sick leave and no definitive decision had been made at that point with regard to her transfer request. In all the circumstances the Court is satisfied that the Complainant’s claim submitted to the Equality Tribunal on 22^ndOctober 2010 alleging that the Respondent had discriminated against her on the ground of her disability and had not fulfilled its statutory duty to provide her with reasonable accommodation when she sought to be transferred to the Recruitment Unit is not upheld.

Victimisation claim

It is well settled that the protection against victimisation is not limited to situations in which a complaint of discrimination is subsequently upheld. However, the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.

Section 74(2) of the Act provides, in effect, that victimisation occurs where a person is subjected to adverse treatment as a reaction to,inter alia,the bringing of a complaint under the Act. That suggests that‘but for’the complaint the Complainant would not have suffered the detriment.

The first detriment relied upon by the Complainant related to her return to work on
16^thJune 2008, when she alleges she was treated in an aggressive manner by the HR Manager for not giving prior notice of her return to her post and she was required to leave the premises and seek a certificate of fitness to return from the Chief Medical Officer. The Court finds that this alleged incident is out of time.

In any event and for the sake of completeness the Court notes that the Complainant had been out absent for a period of two years prior to her return on 16^thJune 2008 she was not expected back at work and did not have the required fitness to return to work certificate from the Chief Medical Officer. In normal circumstances it would be necessary for her to have such a certificate and the Court notes that such was required by the Respondent’s policy. Therefore, the Court is satisfied that the actions of the Respondent in not allowing her to recommence work without such a certificate was perfectly normal in the circumstances and cannot therefore be held to be in retaliation for having previously taken a complaint under the Acts. In these circumstances it could not logically be said that ‘but for’having made a complaint the Complainant would have been allowed to return to work after a long period of illness without a fitness certificate.

Signed on behalf of the Labour Court



Caroline Jenkinson
20th February, 2014______________________
JMcCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.