EMPLOYMENT EQUALITY ACTS 1998 to 2011
DECISION NO. DEC-E2015-136
PARTIES
Cliona Love
(Represented by SIPTU)
-V-
St James’ Hospital
(Represented by IBEC)
File reference: EE/2014/096
Date of issue: December 2015
1. Dispute
1.1 This dispute is in relation to a claim by the complainant that she was discriminated against by her employer with respect to their decision to terminate her employment which the complainant believes was due to her disability in the terms of Section 6 of the Employment Equality Acts and contrary to Section 8 of those Acts.
1.2 The complainant referred her claim under the Employment Equality Acts to the Equality Tribunal on 27 February 2014. On 19 October 2015 in accordance with Section 41 of the Workplace Relations Commission Act 2015 and Part V11 of the Employment Equality Acts 1998 to 2012 the complaint was delegated to the undersigned, Joe Donnelly, Adjudication Officer, for investigation and decision and for the exercise of other relevant functions under the Acts. My investigation began on that date and as part of my investigation in accordance with Section 79(1) 0f the Acts I proceeded to a hearing on 27 October 2015.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2. Summary of the Complainant’s Case
2.1 The complainant is a 55 year old woman with an intellectual disability. She was employed as a domestic in a major Dublin hospital and had 32 years’ service with the respondent. Her position was 50% funded by the Employee Support Scheme for People with Disabilities.
2.2 The complainant had begun to suffer from some physical health issue and was referred to the Occupational Health (OH) doctor in April 2013.
2.3 The complainant attended the OH Clinic in August 2013 and was informed by the doctor that she was permanently unfit for work. The complainant did not fully understand what was happening and the doctor undertook to contact her father and explain the situation to him.
2.4 On 22 August 2013 the complainant was informed by her line manager in front of a colleague that her employment would terminate at the end of the month. She was requested to postpone upcoming annual leave because she was leaving. The complainant was distressed and contacted her father. In the event the leave was taken as booked.
2.5 The OH doctor spoke to the complainant’s father on 23 August 2013, explained that his daughter was unfit for work and discussed her medical condition with him.
2.6 On 6 September 2013 the complainant received a letter from the respondent’s HR Dept. stating that she was declared permanently unfit for work with effect from 30 August 2013. The letter also stated that her pension details would follow and enclosed standard retirement forms for her to complete. The complainant did not do so.
2.7 A farewell event had been arranged by the respondent for the complainant on the morning of 13 September 2013. Whilst there the complainant was brought by management to an office and requested to sign forms. She at first refused as her father had advised her not to sign anything until he had looked at them but eventually signed because management told her that she had to. The forms included a resignation form.
2.8 Some days later the complainant’s father met with the HR Deputy Director to express his dissatisfaction with what had transpired. He was informed that the complainant could appeal the medical findings.
2.9 In summary the respondent, despite being aware of the complainant’s disability, had terminated her employment and pressurised her into signing resignation and pension forms without ensuring that she fully understood the process and that she had adequate support and advice in that regard.
3. Summary of the Respondents Case
3.1 The complainant’s employment terminated as and from 30 August 2013 by reason of her resignation to avail of retirement on the grounds of ill-health.
3.2 In recent years the complainant’s health had noticeably deteriorated and this had had an impact on her work performance. In April 2012 the complainant had been referred to the OH doctor who certified her fit for work subject to receiving treatment for muscular problems and further review. The respondent also moved her to lighter duties in a different area of the hospital.
3.3 During late 2012 and early 2013 there were complaints in relation to the complainant’s work performance which continued to deteriorate and she was again re-assigned to areas with less onerous cleaning duties.
3.4 The complainant’s dept. manager, concerned at these difficulties, referred her to the OH doctor in April 2013 and the appointment took place in August 2013. The doctor noted that the complainant had weakness in her arms and that the treatment which she had undergone had not resolved the issue. The doctor therefore concluded that the complainant was permanently unfit for work. The doctor discussed this with the complainant who appeared “happy enough” to retire on the grounds of ill-health. The doctor agreed to explain the situation to the complainant’s father.
3.5 The doctor spoke to the father, explained the medical issues to him and, at his request, agreed to speak to the complainant’s GP.
3.6 On 2 September 2013 the medical opinion was formally confirmed by letter to the complainant to which was attached standard resignation and pension forms for completion by her.
3.7 The complainant attended her farewell event on 13 September 2013 and agreed to sign the resignation form on the same day which confirmed that her last day of employment was 30 August 2013.
3.8 Following this a letter of complaint was received by the HR Deputy Director from the complainant’s father in relation to the resignation and pension forms. The processing of the pension was then put on hold.
3.9 The HR Deputy Director met with the complainant, her father and the SIPTU shop steward to discuss the retirement. The complainant’s father was advised that the decision that his daughter was unfit to work could be challenged on medical grounds by submitting a report from her GP stating that she was medically fit to perform all duties. They also discussed what payments were due and were advised that pension payments had been suspended by reason of the father’s request. No report was received from the complainant’s GP.
3.10 On 4 March2014 the complainant requested that she be paid her pension. This was processed and her pension payments commenced on 20 March 2014 with full retrospective payments back to 30 August 2013.
3.11 The respondent’s position is that the complainant was not dismissed but resigned on the grounds of ill-health. She attended her farewell event and signed resignation and pension forms. Her right to appeal the medical opinion was explained but was never availed of. She accepted her pension and this was paid to her backdated to the date of her resignation. There is therefore no dismissal nor any case of discrimination to answer.
4. Findings and Conclusions of the Adjudication Officer
4.1 In the hospital there is a specific form to be completed by a manager when they are referring an employee for Occupational Health assessment. Section 6 of that form is a box entitled “Specific Advice Requested”. Section 7 of the form is entitled “Examples of Questions Managers May Wish to Seek Advice On” and contains seven query options with boxes to be ticked as considered appropriate.
4.2 On the form which was used for the referral of the complainant in April 2012 Section 6 was left blank by the referring manager and Section 7 had three questions ticked as follows;
“Is he / she currently fit to carry out to carry out the duties outlined in the job description?”
“Are there any short term adjustments to the work tasks or environment that would facilitate rehabilitation or an early return to work?”
“Is there any future requirement for medical support or intervention?”
4.3 The referral form completed by management in April 2013 was significantly different. Section 6 contained one query;
“Is she a candidate for retirement on disability?”
Section 7 had two questions ticked as follows;
“Is there an underlying medical condition affecting this individual’s performance or attendance at work?”
“Is he / she currently fit to carry out the duties outlined in the job description?”
It appears to me that the mindset in management had moved from providing accommodation for the complainant to looking at termination of her employment, particularly having regard to the query in Section 6 of the form.
4.4 On 9 August 2013 the OH doctor sent an email to the referring manager which, after reviewing her previous treatment, went on to state; “I have to speak to her father (at her request; also I know him from college) about it but I can conclude that she is permanently unfit to perform the work task of a domestic / janitor.”
4.5 Section 16(1)(b) of the Acts provides an employer with a complete defence to a claim of discrimination on the disability grounds 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 had been employed.
4.6 The Labour Court has considered how an employer should proceed in such a situation in the case of A Health Fitness Club v A Worker. The Court stated;
“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 were 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 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 first 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.
4.7 This approach was underpinned by the Circuit Court when Dunne J. found that an employer that has failed to go through this process 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.
4.8 In this case the complainant, it should be remembered, had an intellectual disability. There was therefore a greater onus on the respondent to make absolutely certain that she was fully aware of the process that was being engaged upon and of the consequences that could arise in this regard and that she could seek proper advice and representation in relation to this matter prior to any conclusion being reached.
4.9 In evidence the respondent’s witnesses accepted that the OH doctor’s opinion was de facto a decision that the complainant’s employment would be terminated. All their subsequent actions were based on giving effect to that decision. The termination date was decided by management and then advised to the complainant in the form of an open conversation on the floor in front of work colleagues.
4.10 The process was further compromised by the actions of management in getting the complainant to sign a resignation form whilst she was attending her farewell event despite her stating that she did not want to sign any forms. This resignation notice was dated 13 September 2013, two weeks after the actual termination of the complainant’s employment.
4.11 It was only when the complainant’s father wrote to the HR Deputy Director that a meeting was arranged and that an appeal option was discussed. It was further stated in evidence that the HR Dept. had no involvement in the case prior to the termination of employment.
4.12 Given the above I find that the resignation did not arise from an informed, consensual decision on the part of the complainant. Section 85A(1) of the Acts state;
“Where in any proceedings facts are established for or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her it is for the company to prove the contrary.”
In this situation I find that the respondent terminated the complainant’s employment on 30 August 2013 on the grounds of disability and that the complainant has established a prima facie case in that regard.
4.13 There is a defence if a respondent can show in accordance with Section 16 of the Acts that they had a bona fide belief that the complainant was not fully capable of performing the duties for which she was employed. Again, referring to A Health Fitness Club v A Worker, the Court mentioned the requirement to consider if any special treatment or facilities may be available which would allow the employee to continue in employment. It is clear that in the previous year the respondent had done so in this case, particularly having regard to the manner of the referral to the OH doctor at that time. In contrast when the complainant was again referred to the OH doctor in April 2013 there was no request for a consideration of any measure of reasonable accommodation.
4.14 There is a further element set out by the Court in that case;“ Such 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.” The procedures adopted by the respondent in this case utterly failed to address their responsibilities in this regard. There may well have been a belief, particularly by the OH doctor, that the proposal to retire the complainant on the grounds of ill-health was in the complainant’s best interest but that did not obviate the requirement for management to ensure that the proper processes and protocols were adhered to prior to finalising a decision.
4.15 I find therefore that the respondent cannot avail of the defence provided by Section 16(3) of the Acts as the correct procedures were not followed.
5. Decision of the Adjudication Officer
5.1 I have completed my investigation into this complaint and in accordance with Section 79(6) of the Acts I find that the respondent dismissed the complainant in circumstances amounting to discrimination on the grounds of her disability in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 8 of those Acts and that it failed to provide her with reasonable accommodation within the meaning of Section 16 of those Acts.
5.2 Section 82 of the Acts provides that I can make an order for the effects of the discrimination. Any award for compensation should be proportionate, effective and dissuasive. In making my award I am mindful that the respondent in this case was faced with a situation where it appeared that an employee was unfit for work. Appropriate enquiries were made to ascertain the extent of the employee’s condition by referring the employee to the OH doctor. The respondent then failed, however, in its obligations to properly consult with and engage with the complainant (particularly having regard to the specific requirements of the complainant in this respect) in considering what, if any, further special measures could be taken or in evaluating alternatives. Had they done so it might well be that a mutually acceptable solution could have been reached. But the respondent, by imposing the decision to retire on the complainant, effectively terminated her employment on the grounds of disability.
5.3 Having taken the foregoing into consideration I must also bear in mind that in March 2014 the complainant accepted receipt of her pension and that this was paid and backdated to 30 August 2013.
5.4 Having taken these matters into consideration and having regard to the rate of remuneration that the complainant was in receipt of at the relevant time I consider an award of compensation in the sum of €17,000 to be just and equitable.
5.5 Therefore, in accordance with Section 82 of the Employment Equality Acts 1998 to 2008, I order the respondent to pay to the complainant the sum of €17,000 in compensation for her discriminatory dismissal and the failure to provide her with reasonable accommodation. This award is in compensation for the distress experienced by the complainant in the above matters and is not in the nature of pay and therefore not subject to tax. I also require the respondent to put in place proper processes and procedures to address the failings in relation to fulfilling their obligations under the legislation that have been highlighted in this case.
________________
Joe Donnelly
Equality Officer/Adjudication Officer
December 2015