FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : A MULTINATIONAL EMPLOYER (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY O'GORMAN SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under section 83 of the Employment Equality Acts, 1998 to 2014.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 19th May, 2014. A Labour Court hearing took place on the 30th October, 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal by a Multi-National retailer against the decision of the Equality Tribunal in a claim by a worker that the Multi- National Retailer failed to provide her with reasonable accommodation for her disability so as to allow her to return to work following a period of absence due to illness. The Equality Officer found for the Complainant and awarded her compensation in the amount of €30,000. The appeal is against the finding of liability and the award.
In this Determination the parties are referred to as they were at first instance. Hence the worker is referred to as the Complainant and the Multi-National Retailer is referred to as the Respondent.
Facts
The facts as admitted or as found by the Court are as follows:
The Complainant worked for the Respondent and its predecessor since 1975. She worked almost solely on the customer service desk for some 30 years. While working in that location a chair was provided and the Complainant could remain seated on occasions during the day.
There is no issue as to the fact that the Complainant is a person with a disability. She had a colectomy in 2001 in consequence of which she needs ready access to a toilet. In 2005 she had two knee replacements. The toilet was located upstairs in the store and, according to the Complainant, it was too low for her needs. There was no lift in the store. The Complainant could not access the toilets and she was required to use the toilets in another store located in the same shopping center. This facility was only marginally better and she still had difficulty accessing it. The Complainant requested that a toilet for use by disabled persons be provided in the store. She contends that the Respondent promised to provide such a facility on several occasion but failed to do so.
According to the Complainant, in or about spring 2009, she was told by the then personnel manager that a disabled toilet was being provided in the store and she was shown where it was to be located. Shortly after being so informed, the Complainant went on holidays. While on holidays she broke her leg in an accident. She experienced complications and required further surgery. The Complainant was absent from work as a result of her injuries for two years.
In July 2011 the Complainant’s doctor certified her as fit to return to work. However this was conditional on the following conditions being met: -
- •The Complainant should return to work on a phased basis,
•That she be allowed to sit occasionally during her working day,
•That she have access to a disabled toilet on the premises where she works
The Complainant’s proposed return to work and the conditions recommended by her doctor was the subject of an exchange of emails with her manager. By email dated 29thJuly 2011 the manager informed the Complainant that her former position at the customer services desk had been reorganised and was now regarded as a sales position. The Respondent informed the Complainant that it was not considered feasible to provide a chair in this location. The Respondent went on to say that the Complainant would be provided with a position on a check-out where she could remain seated. The Complainant was also informed that the provision of a disabled toilet in the store had been deferred. She was, however, advised that the Respondent would allow her sufficient time to visit a disabled toilet in the shopping centre in which the store is located. Finally the manager proposed that the Complainant would be facilitated with a phased return to work.
The Complainant was unhappy with these proposals and she pursued a grievance through the Respondent’s internal procedure. The Complainant was represented by her trade union, Mandate, at all stages in the grievance procedure. However, a resolution was not found and the within proceedings were initiated in March 2012. The Complainant has not returned to work.
Position of the Parties
While the Complainant relied on the failure of the Respondent to provide her with a chair at the customer desk in advancing her claim, she told the Court in evidence that the real impediment to her return to work was the Respondent’s failure to provide a disabled toilet in the store that she could use. The Complainant accepts that she was offered a position on a checkout at which she could remain seated and that she had rejected that proposal out of hand. She told the Court that in the absence of suitable toilet facilities her return to work was impossible.
The Respondent contends that it discharged its duty by allowing the Complainant time to visit an adjacent disabled toilet. The Complainant’s response is that the disabled toilet is not suitable for a number of reasons but principally because it is located in a busy shopping centre and is frequently in use and requires queuing. It was thus unsuitable having regard to the urgency with which she needs to use the toilet because of her medical condition.
The Respondent told the Court that the cost associated with providing toilet facilities on the ground floor of its premises suitable for the Complainant was of the order of €22,000.
Conclusions of the Court
Scope of the Duty to Provide Reasonable Accommodation
The within claim is grounded on the alleged failure of the Respondent to take appropriate measures to allow the Complainant to participate in employment. The requirement that the law imposes on employers in that regard is generally referred to as the duty to provide reasonable accommodation, and is referred to as such in this Determination. The case, therefore, turns on the correct application of s.16 of the Act. That section 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.
(2) In relation to—
(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,
(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and
(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,
subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.
(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,
- (i) to have access to employment,
- (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.
(4) In subsection (3)—
“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—
(a)such a person who is seeking or using any service provided by the employment agency,
(b)such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and
(c)such a person who is a member of or is seeking membership of the regulatory body.
“appropriate measures” , in relation to a person with a disability—
(a)means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,
(b)without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c)does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;
Article 5 of the Directive provided: -
- In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.
- In accordance with the second paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation'.
There is no doubt that the Complainant had particular needs arising from her disability including a need to use the toilet with a degree of frequency and urgency that is different to that of others who do not suffer from a similar disability. The manifestations of her disability in that regard placed her at particular disadvantage in employment relative to workers without that disability. The main disability suffered by the Complainant is compounded by her restricted mobility due to her knee injuries, the combined effects of which made the use of an upstairs toilet unsuitable.
The question that then arises is whether the course of action proposed by the Respondent, namely, allowing the Complainant sufficient time off to use the toilet in the shopping centre, discharged its statutory duties under s.16 (3)(b) of the Act as interpreted in light of Article 5 of Directive 2000/78/EC. In considering that question the Court has taken account of the evidence tendered by the Complainant to the effect that the shopping centre was frequented by people with disabilities from a nearby care facility. Those people used the disabled toilet that she was expected to use and this resulted to frequent and lengthy queues outside the toilet. The Complainant described the consequences that this could have for her because of her disability. That evidence was not contradicted.
In light of the evidence before it, the Court is satisfied that the only toilet facilities available to the Complainant were not suitable to her needs. The Court is further satisfied that the failure of the Respondent to provide the Complainant with toilet facilities suitable to her needs prevented her from having access to employment on the same terms as others.
The duty to provide a person with a disability with reasonable accommodation is limited by what is reasonable and that includes cost. Section 16(3)(c) of the Act provides that in considering if the provision of reasonable accommodation would place a disproportionate burden on employers the Court must have regard to, the financial and other costs involved and the scale and financial resources of the employer’s business. The cost of providing a disabled toilet in the store in which the Complainant worked was measured by the Respondent at some €22,000. The Respondent is a large multi-national company and expenditure of €22,000 could not, by any standard, be regarded as imposing a disproportionate burden in vindicating the Complainant’s right to work on the same basis as others.
Outcome
For all of the reasons set out herein the Court is satisfied that the Respondent failed to discharge its duty to provide the Complainant with reasonable accommodation in terms of s.16(3)(b) of the Act. It follows that the decision of the Equality Tribunal must be affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
10th November, 2014______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.