DEC-E2014-067

Employment Equality Acts

Decision No. DEC-E2014-067

PARTIES

Szczepanska

(Represented by Diarmuid Murphy BL instructed by Maguire McClafferty Solicitors)

-v-

ArcRoyal Limited

(Represented by IBEC)

File ref: EE/2011/397

Date of Issue: 2nd October 2014

1. DISPUTE

This dispute involves a claim by Ms Iwona Szczepanska (hereinafter referred to as "the complainant") that she was discriminated against by ArcRoyal Limited (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 her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008.

2. BACKGROUND

2.1 The respondent is a manufacturer and distributor of single-use medical products. The complainant worked in the production department for the respondent. In 2009 the complainant suffered an accident at work resulting in a shoulder injury which impeded her ability to lift objects. Ultimately the respondent contends that it was not able to provide the complainant with work that could accommodate her injury.

She submits that the alleged treatment of her amounts to discrimination on grounds of disability contrary to the Acts. The complainant also contends that the respondent failed to afford her reasonable accommodation in terms of section 16 of the Acts. The respondent rejects the complainants' assertions in their entirety.

2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2008 to the Equality Tribunal on 19 April 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 on 29th June 2013. Final submissions were received on 17 July, 2013. The complainant withdrew the ground of race at the outset of the hearing. 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 an employee of the respondent company since 2007 as a member of the production department. The complainant submits that her usual duties involved working in the warehouse as a general operative. On occasion she worked in the "Clean Room" or computer section of the warehouse. The "Clean Room is where products are assembled in sets and boxed for dispatch to hospitals. The complainant submits that, this area is where warehouse operatives are transferred to during their pregnancy. The complainant submits that her duties sometimes included working at a computer station which mainly involved printing orders, stickers etc. for other staff members working in the warehouse.
3.2 In February 2009 the complainant had an accident at work resulting in a shoulder injury. She was absent from work on sick leave form 9 February 2009 until 23 February 2009. When she returned to work she was initially allocated duties at a computer station but after two weeks was moved to her pre-accident duties.

3.3 The complainant was unfit to work again from 22 April 2009 until 13 July 2009. She had a relapse of her injury which resulted in a further absence from work 30 October 2009 to 1 June 2010.

3.4 Upon her return she was subject to disciplinary procedures, resulting in a verbal warning for not following manual handling procedure. The complainant disagrees with the basis of these warnings. The complaint points out that a disciplinary procedure only occurred 16 months after the accident.

3.5 From about April 2009 the complainant exchanged a volume of correspondence with her employer and made a number of complaints about her working conditions. These included requests for lighter work in line with her medical recommendations and other complaints regarding health and safety

3.6 The complainants shoulder injury continued to cause her problems. She presented her employer with a number of medical certificates from her physiotherapist and GP requesting lighter duties. Her own GP report on the 15 Oct 2010 stated that she should "be moved to a section of the company where strenuous overhead lifting is not a feature". The complainant submits that since that day the respondent has refused to accommodate the complainant's disability in any shape or form despite efforts by the complainant to return.

3.7 The complainant submits that given the scale of the respondents operation and the negligible scale of appropriate measures required to accommodate the disability in question, that the burden on the respondent would not be disproportionate; in fact the complainant claims that they could be next to nothing. Specifically, the complaint says that the appropriate measures, in her opinion, would involve moving her to a computer work station within the warehouse or the Clean Room where "strenuous overhead lifting is not a feature."

4. SUMMARY OF RESPONDENT'S CASE

4.1 The respondent rejects the complainant's assertions in their entirety. They submit that every effort has been made to identify a role within the organisation which could accommodate the complainant but that none can be identified.

4.2 The respondent submits that as there was no witness or supporting CCTV to the accident. that it is their understanding that from the complainants own report log, that arising out of her failure to follow detailed company training in relation to the safe performance of her duties, she had hurt her shoulder when taking down a box.
4.3 Following a period of sick leave, after which the claimant was signed off as being fit to return to work for light duties, on 23 February 2009, as a gesture of goodwill the respondent paid €50 towards the complainants' physiotherapy costs in order to assist in her return to work.

4.4 The respondent submits that, upon the complainants' return to work she was retrained on all aspects of the role, health and safety and was instructed not to lift heavy loads as per the medical advice. The respondent says that a number of alterations were made to the complainants duties in order to help facilitate her recovery and return to work. The respondent submits that, on 3 April 2009 the company received notice from the company Doctor that the complainant had ignored yet again a direct instruction, her training and retraining when she lifted a heavy box in work.

4.5 The respondent says, a meeting was called with the claimant where she was informed that her behaviour was not acceptable and that in future she must follow the instructions of both her manager and the company doctor. The respondent says that, the complainant was advised that these instructions were to protect her health and that failure to adhere to the health and safety requirements could result in disciplinary action. Minutes of this meeting were submitted to the Tribunal.

4.6 A further meeting was held with the complainant on 8 April 2009. The respondent says that, again the company clarified that the claimant must not engage in any heavy lifting. In order to assist the complainant that a number of actions were agreed so that the recommendations of the doctor could be followed and that there would be no reoccurrence of the complainants' injury.

4.7 The respondent submits that following a visit to her own doctor at which complainant informed her doctor that she was not preforming light duties, the respondent outlined what her light duties were to be in writing stressing that the complainant was not to lift any heavy items.

4.8 The complainant was certified fit to return to work on the 13 July 2009 following physiotherapy sessions funded by the respondent and was notified in writing of phased arrangements for her return and the complainant signed off on retraining that she underwent. Regardless of the above, in September 2009, the respondent submits that the complainant injured herself again while not following agreed procedures as witnessed by other staff members.

4.9 In early January 2010 the complainant submitted an assessment from her own doctor that she was "completely fit to resume all work duties from 25 January 2010" however that " lifting weights above 5kg could reactivate old injuries" The respondent submits that given the complaint's role in the company that such accommodation was not possible and it set out these reasons in two letters to the complainant later that month. The respondent maintains that in the meantime they continued to manage the complainant's absence by periodically reviewing the situation, in addition to providing free GP access and along with her physiotherapy sessions and payment for an MRI scan.
4.10 The respondent submits that, on 1 June 2010 the complainant was certified as fit to return to work and resumed her duties. Again the respondent says it followed its procedure as with the previous occasions of the complaints return to going on to issue a letter advising the complainant to attend a disciplinary meeting to address in their view repeated breaches of health and safety regulations. Following this disciplinary meeting on, held on the 4 June resulting in a verbal warning. Following established procedures the complainant made two appeals against the warning but was unsuccessful.

4.11 Following a period of annual leave the complainant returned to work with a medical certificate from her own medical practitioner which stated that she was not fit to engage in manual labour. The respondent immediately asked the complainant to refrain from any work

until a meeting could be arranged with HR. Following that meeting with HR the complainant was informed that until an appointment could be made with the company doctor that she was to be placed on sick leave.

4.12 The complainant has subsequently remained absent from work and her absence continues to be certified. The respondent says it is not the case that all pregnant workers are transferred to the clean room. They submit that the complainant has admitted during internal investigations that she did not follow manual handling procedures.

4.13 The respondent submits that as the complainant presented herself for work after the second incident she presented herself as being 100% fully fit, reasonable accommodation was not necessary or requested. The last medical cert stated that there should be "no work with lifted arms" this has ruled out areas where the complainant has requested to be accommodated as all roles including computer work would have a requirement to work with lifted arms.

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 her reasonable accommodation.

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 her conditions of employment and whether the respondent failed to provide reasonable accommodation in order to enable her to continue to work with the respondent. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.
5.2 The complainant has alleged that she was discriminated against on the grounds of her 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".

5.3 The respondent contests the complainants' assertion that her injury represents a disability under the acts. In the instant case the complainant is subject to a physical limitation which hinders her in participation of professional life. I am satisfied that the complainants' condition is a disability as she has a medically certified serious malfunction of her body which directly prevents her form carrying out her work, and that the malfunction has, on the basis of the medical records presented been treated according to medical advice over an extended period of time but has not been rectified. I find that the complainant was suffering from a disability as defined under the Acts.

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 Acie 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.1.R. 296 that:

"The nature and extent of the enquiries which cm employer should make will depend on the CirC1111751011CeS 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 lair notice that the question of his or her dismissal.* 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.f•om 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 MI 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 CM end in itself It is a means to cm 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 cis 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 lest which must have regard to all the circumstances of the particular case.'

5.8 In the instant case the respondent has provided extensive documentation in regards to all of the steps it took to deal with the complainants disability. I find that the respondent was exemplary in how it worked with the complainant in order to ensure her return to work after the first accident, specifically exempting her of the requirement to undertake certain tasks which others doing similar work are expected to perform. However, having examined in detail the temporary tasks assigned to the complainant (allocated duties at a computer station) during that period I accept that these tasks could not constitute employment in the long term.

5.9 The complainant was employed in the capacity of a warehouse operative which inherently required her to be physically active in a manner that her disability would not allow. I note that the final medical cert from the complainants' own doctor states "no manual labour with lifted arms" I find that the respondent acted in a responsible and diligent manner to identify alternative roles for the complainant but they were unable to do so. I accept their arguments that administrative roles in the company which are few, specialised and require a high level of academic qualifications do not constitute similar work. I note that the company went so far as to investigate roles identified by the complainant that she might fill on a full time basis. Specifically the complainant wanted to work in the clean room, however at the hearing a witness for the complainant gave clear evidence that working in the clean room required physical movement that the complainant is incapable of.

5.10 I find that,

• The employer made more than adequate enquiries so as to establish fully the factual position in relation to the employee's capacity and was in full possession of all the material facts concerning the employee's condition.
• The complainant had been allowed a full opportunity to participate at every stage of the process allowed to present relevant medical evidence and submissions. I note that the respondent put a higher value on the advice of the complainants' doctor then their own company doctor.
• The respondent put in place a number of agreed special treatments for the complainant before eventually reaching the conclusion that the complaint could not carry out the duties for which she was employed.

DECISION OF THE EQUALITY OFFICER.

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

(i) the respondent has not discriminated against the complainant on the grounds of disability regarding his conditions of employment

(ii) the respondent has not failed to provide appropriate measures that would allow the complainant to continue to be employed by them

Therefore, I find against the complainant.

_____________

Peter Healy

Equality Officer

2 October 2014