The Equality Tribunal
Employment Equality Acts 2000 to 2011
EQUALITY OFFICER’S DECISION
NO: DEC-E2015-009
A Complainant
(Represented by Claire Bruton, BL instructed by Hennessy Perozzi Solicitors)
v
A Healthcare Company.
(Represented by IBEC)
Date of Issue: 27th February 2015
File No.EE/2013/205
Keywords
Employment Equality Acts - discriminatory treatment - disability - reasonable accommodation - conditions of employment - prima facie case
1. Dispute and delegation
1.1 This dispute concerns a claim by the complainant that she was subjected to discriminatory treatment in her working conditions by the respondent on the grounds of disability in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts, in that, she was moved to a different area of the company as a result of her disability. She further alleges that the respondent failed to provide her with reasonable accommodation in terms of Section 16 of the Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 26 April 2013 under the Employment Equality Acts. On 14 May 2014, in accordance with his powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 23 September 2014. Final documentation was received on 29 November 2014.
2. Summary of the complainant’s case
2.1 The complainant has been employed with the respondent since 10 April 1978. The complainant was initially employed as an assembler and has been working with the Bio Clean team since 2002. The complainant alleges that she was treated less favourably by the respondent because of her disability which is Multiple Sclerosis contrary to the employment equality legislation. In 2006, the complainant was diagnosed with MS. The respondent was at all times fully aware of the complainant’s condition. At the request of the respondent, the complainant attended for a medical assessment with Dr. M on 6 December 2012 and again on 14 January 2013. At the review on 6 December, the complainant confided to Dr. M of a “new issue of concern in respect of her job”. The issue was discussed and reported by Dr. M. The complainant instructed Dr. M that she did not “want to formalise it into a complaint or grievance”. Dr. M did not feel that the complainant was well enough to return to work at that time and arranged a review in January 2013. The complainant maintains that Dr. M appeared to take it upon himself to ask the Occupational Health Adviser to “informally have discussions with management regarding the issue of concern within the workplace to evaluate measures to try and lessen any tension within the group as a consequence of S’s inability to cope with extra work”. He sought feedback. It appears from the report of Dr. M that he received feedback from the Occupational Health Advisor, the Team Leader and the Manager.
2.2 Dr. M stated in his report of 14 January, 2013 that “my preference is for S to meet with the company and to resolve any issues of concern before she comes back to work rather than attempting to return to work and then trying to address the issues in case the addressing of the issues itself could exacerbate the situation and lead to further absence”. Dr. M went on to say “I recommend that she work half shifts for a two week period but thereafter should be able to work on a full-time basis without restriction.” On 15 January 2013, the complainant was requested to attend a meeting entitled “Meeting with Management and Sandra to discuss return to work”. Those present at the meeting were the complainant, Mr. D, Line Manager Ms. C and Mr. R. The complainant contends that the purpose of the meeting, as is clear from the minutes, was to inform the complainant that it had been decided by the respondent to move the complainant from the “Bio Clean Department” to the “Makes Spares Area”. The complainant queried whether the move was as a result of her MS condition and Mr. D replied that if the complainant did not have MS, she would not be removed from the area.
2.3 The complainant maintains that management inexplicably moved her from the Bio-clean area on the pretence of a capability issue which was not properly explored with the complainant and that there was no objective basis for the decision. The complainant contends that the move caused her extreme distress and she suffered an injury as a result of the move. The complainant was a long established employee with the company having 36 years service with the company at that time. She states that due to the relocation, she last a lot of responsibility and connections with engineers, visitors, ISO and customers. The complainant contends that following her transfer to ‘Make Spares Area’ she found the work boring, degrading and insulting and contends that there were no responsibilities attaching to the post. She feels that it is not a job suitable to her vast experience and knowledge with the company. The complainant cites the cases relating to Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296 and the Labour Court Determination EDA 1318 (Shannon Regional Fisheries Board v A Worker ADE/2013/1 in support of her case. The complainant contends that the respondent failed in its obligations and duties towards her pursuant to section 6 and section 16 of the Acts. It is submitted that the respondent has failed to justify its actions towards the complainant in transferring her from the “bio-clean area” to the “make spares area”, an action which took place entirely on the basis of the complainant’s MS but in the absence of any medical or other expert advice.
3. Summary of the respondent’s case
3.1 The respondent states that the complainant commenced employment with the company in April 1978. The complainant has Multiple Sclerosis since 2006. The respondent states that in May 2012, the complainant commenced a period of certified sickness absence as a result of her illness. In October 2012, the complainant returned to work on a phased basis until it was felt that she was well enough to resume full duties which occurred in November 2012. In late November 2012, the complainant went out on sickness absence once again as a result of a relapse of her illness. This was documented by Dr. M, Occupational Health specialist, who was appointed by the respondent on 6 December 2012. In the course of her examination, the complainant intimated to Dr. M that there were issues with her team in the workplace, occurring on occasions when extra work was required of the team for operational reasons. The respondent maintains that this intermittent imbalance of workload was giving rise to disquiet among the workers in the “bio clean” area as when peaks occur, the added work was unevenly distributed. The respondent contends that the complainant intimated further that she believed that this exacerbated the symptoms of her MS condition but she clearly stated that she did not want to formalise the issue as a complaint or grievance. At that time, she was considered unfit to return to work and a review was scheduled for January 2013.
3.2 The review took place on 14 January 2013 with Dr. M, of Occupational Health. Dr. M found that the complainant’s condition had improved to the point where she could return to work, albeit on a phased basis and that the “issues of concern” should be discussed before her return to work to avoid the risk of her condition deteriorating. The following day, 15 January 2013, the complainant’s manager, D convened a meeting with the complainant, her trade union representative and K, her team leader. The respondent states that the objective was to review options that might have less onerous physical demands for the complainant, eliminating the likelihood of the symptoms of fatigue that present with her illness while at the same time alleviating the workload imbalance within the bio-clean area. The respondent maintains that the “Make Spares” area, as a ‘light’ assembly area was a suitable alternative for the complainant. The respondent contends that it was a role for a production operator assembler and there was no decrease or diminution in the complainant’s remuneration or conditions of employment and no detriment attached to the move. The respondent states that it was of the view that this move would resolve the issue of workload imbalance in the “bio clean” area. The respondent also states that transferring employees from one part of the production line to another, for operational reasons, is standard practice, with or without stated cause and as there is no detrimental impact, this cannot be perceived as treating a person ‘less favourably’ for the purposes of section 6 (1) of the Acts. The respondent contends that its proposal in respect of the complainant was reasonable and effective, in that, it removed the complainant from the source of the stress when increased workloads occurred in the “bio clean” division and that there was no detriment whatsoever associated with the complainant’s transfer.
4. Conclusions of Equality Officer
4.1 I have considered all the evidence both written and oral presented to me. 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. 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 facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a recent Determination the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. 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.”
4.2 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 –
“(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”.
It was accepted by both parties that the complainant’s condition is a disability within the meaning of the Acts and I am satisfied that her disability comes within the meaning of the definition as above. The complainant submits that she was not provided with reasonable accommodation. Therefore, the matter I have to consider is whether the respondent provided the complainant with appropriate measures in accordance with Section 16 of the Acts.
4.3 Section 16 of the Acts provides:
“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,
(4) In subsection (3)-
“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 herself or herself;”
4.4 I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club EED037 which was upheld by the Circuit Court. The Labour Court stated:
“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…………….. 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.
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.”
4.5 Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker. I note in the letter from the Occupational Health Consultant, Dr. M following a review meeting with the complainant which took place on 6 December 2012, Dr M states “she (the complainant) raised a new issue of concern in respect of her job. She tells me that there are five members in her team. She is the only female. One of her colleagues has a medical problem and is unable to cope with the demands of the job. Therefore, a degree of extra work is assimilated into the team. S acknowledges that while she can do her own duties without significant issue when she is well, she struggles to take on extra work, which presumably means then that the three remaining members of the team have to do extra to compensate and I understand that there is a level of tension within the team as a consequence. S feels particularly under pressure from one male colleague who is quite vocal about this and who has raised it on a number of occasions with the team leader. The team leader has advised Sandra to ignore them but she says it is very difficult to do when she is working in a small team, she is the only female and there is palpable tension within the group. This upsets her, exacerbates her anxiety and she believes, in turn, fuels her condition thus making it more difficult for her to work and creating a spiral of decline. While she is keen to come back to work, she raises this as an issue of concern but does not necessarily want to formalise it in a complaint or grievance.”
4.6 Dr M goes on to state “I have asked the Occupational Health Advisor to informally have discussions with management reference the issue of concern within the workplace to evaluate measures to try and lessen any tension within the group as a consequence of S’s inability to cope with the extra work. I would welcome some feedback from the team leader and manager prior to my next review of S so that I can incorporate their viewpoint within the next review.” In a further review with the complainant on 14 January 2013, Dr M states “my preference is for S to meet with the company and to resolve any issues of concern before she comes back to work rather than attempting a return to work and then trying to address the issues in case the addressing of the issues itself could exacerbate the situation and lead to further absence. Therefore, I believe that the next stage is for management to arrange a meeting with S to discuss and agree the issues of concern, how they will be addressed and resolved and then a return to work can be planned thereafter.” The following day 15 January, management held meeting with the complainant to advise her that she was being moved to another area in the company. In the minutes of the meeting her manager, D states “the bottom line is that one person is already on restricted duties in the area and with S’s fatigue it drives workload on other people in the area. There is an issue trying to accommodate S and another individual with a team of five persons. S asked if she didn’t have MS would she be moved from the area, D said that if she did not have MS, then she would not be moved from the area”. Having examined the evidence and the testimony on this issue, I find that the complainant has established prima facie evidence of discriminatory treatment on grounds of disability and the burden of proof shifts to the respondent to rebut the evidence.
4.7 In weighing up all the evidence, I find that instead of carrying out risk assessments of the job and duties based on the complainant’s illness, management made a decision to move her to a completely different area. This decision was made on the basis of an alleged concern on the part of the company that the complainant would suffer from fatigue caused by her MS if and when she was required physically to clean two or more instruments on an ongoing basis. This contention appears to have been made in the absence of any medical evidence and was based on an assumption by D, her manager. At the hearing, D appeared to suggest that the report of Dr. M of 14 January refers to fatigue; the only reference to fatigue within the report is in relation to a comment that the complainant suffered fatigue symptoms during her time off work. There was no assertion in the two medical reports of Dr. M of any fatigue symptoms of the complainant caused by her duties of employment. I am satisfied that the respondent formed a view that the complainant was unable to undertake the duties of her position in the bio-clean area due to her disability. However, Dr. M in his most recent report of January 2013 found the complainant to be fully fit to work. I note that the complainant has 36 years experience working with the company and that she was employed in the “Bio-Clean” area since 2002, an area where she had a substantial role relating to stock control and training. I find that management’s decision to transfer her to a different area without any consultation with her was ill-considered and ill-thought out. I note in the course of the hearing management had high praise for the complainant and her high work output throughout her 36 years service with the company. Having examined the evidence, I find that there was no consideration of reasonable accommodation or appropriate measures by the respondent which could have allowed the complainant to remain in the bio-clean area and there appeared to be no attempt by management to discuss any such options with the complainant. There was no evidence from a medical perspective or following a process in which the complainant was entitled to participate that the bio-clean area was not suitable due to the complainant’s MS. I am cognisant of the decision An Employer v A Telecommunications Company (DEC-E2009-073) where the Equality Officer found no evidence of any consideration of any form of reasonable accommodation and there had been no engagement with the complainant. In addition, in the Labour Court decision A Worker v A Hotel ELR 73 [2008] where it held that the “duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.” It is clear that the requirements imposed by an employer under section 16 demonstrate the individualised nature of the assessment of the needs of the complainant. In the instant case, it is evident that the complainant was not afforded any opportunity to participate in this process.
4.8 I am satisfied that the respondent was not in possession of all material facts having regard to the complainant prior to the decision to move her from the bio-clean area. The respondent failed to have any consideration of the degree of impairment arising from the disability of the complainant on the basis of medical advice and failed to involve the complainant at each stage of consideration. There was no attempt to furnish the complainant with the medical reports of Dr. M prior to the meeting of 14 January. I am also mindful of Dr. M’s request in his report of 14 January 2012 where he asked management to meet with the complainant to discuss the reasons for the tension within the team and try and find a way forward. The company could have at this stage looked into the option of mediation in order to try and resolve the issues. However, the following day, on 15 January, the complainant was informed in a meeting with management that a decision was taken to move her from the bio-clean area. In the decision An Employer v A Telecommunications Company (DEC-E2009-073) the Equality Officer was particularly critical of an act on behalf of the employer to misinterpret or fail to follow the findings of its medical report and I feel this decision is very pertinent and applicable in the instant case. I find that the approach of the respondent in failing to ensure that the complainant was apprised at all stages of the evidence it was taking account of most notably the reports of Dr. M and the lack of consultation runs contrary to what is required having regard to the decision of Humphreys v Westwood. While the respondent also argued that it was common practice to move employees around divisions, there was no documentary evidence or otherwise presented to the Tribunal to substantiate this assertion. Indeed, it is noteworthy that complainant had been in the bio-clean division since 2002.
4.9 In the course of the hearing, the HR manager referred to a duty of care on behalf of the company towards the complainant having regard to a concern that she could suffer a relapse as a result of fatigue. There is no medical evidence to demonstrate this and this assumption appears to have been made in the absence of any medical evidence. I am cognisant of the decision of the Labour Court in McCrory Scaffolding Ltd v A Worker EED055 where it was established that assumptions of a health and safety nature towards employees with a disability without the benefit of receiving or assessing the medical evidence constitute discrimination on grounds of disability. I am satisfied that from the notes of the minutes of the meeting of 15 January, there is no mention of this being discussed with the complainant and therefore there was no opportunity for the complainant to discuss or have any influence over the purported reason for the move. In the recent case of the Labour Court in A School v A Worker EDA 1413, the Court determined that the provision of special treatment and facilities is not itself sufficient and more favourable treatment can be provided to an employee with a disability. In the decision of A Worker v An Employer 2005 16 ELR 159, it was held that a proper and adequate assessment has to be made of a situation of an employee with a disability before decisions are taken which may be to the detriment of the employee. There was an absence of any such assessment by the respondent in terms of medical and occupational advice. Dr. M saw no issue with the complainant’s ability to undertake her tasks and there was no attempt on the part of the respondent to have Dr. M examine the duties of employment either of the bio-clean area or the make spares area to understand and determine whether these duties were appropriate to the complainant. On examination of all the evidence, I find it reasonable to infer that the decision to move the complainant on a permanent basis was made prior to the meeting of 15 January 2012.
4.10 In the decision of A Worker v An Employer 2005 16 ELR 159, the respondent found that the complainant could not undertake the full range of duties and relieved the complainant of duties. However, there was no knowledge on the part of the respondent in A Worker that this was a source of difficulty or distress for the complainant. In contrast, in the instant case, the complainant made it clear in the meeting of 15 January that firstly she was not unable to undertake her duties and secondly that she was entirely unhappy with the direction that she move to the make spare parts area. At this juncture, the respondent ought to have considered further medical evidence and invited the complainant to furnish medical advice or opinion given the divergent views expressed at the meeting on 15 January. There was no attempt by the respondent to deal with the tension on the team as requested by Dr. M. I also note that at the hearing, D, the complainant’s manager accepted that mediation could have been an option and he would be prepared to consider mediation in the event of the Tribunal making an order to return her back to her position within the bio-clean team. In the case A School v A Worker EDA 1413, the Labour Court held that there is “no reason to exclude in principle extending that the duty of reasonable accommodation includes the redesign of a position so as to include those duties that a disabled person can perform if that is a reasonable proportionate means by which the disabled person can be facilitated by exercising their right to work”. In the instant case, there was no attempt by the respondent to examine the complainant’s post in this regard. The Labour court goes on to state “the duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible reasonable and proportional. If all the options that may be available are not adequately considered, the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate.” I am satisfied in the instant case that the respondent did not comply with its duty and obligation to the complainant in this regard.
4.11 On the day of the hearing, I found the demeanour and body language of the complainant’s manager and the HR manager to be very dismissive of the complainant. I found their testimony lacking in credibility in some respects and I consider that they were quite defensive with regard to my questioning at the hearing which further leads me to conclude that the respondent did not give due consideration to the needs of the complainant. On the other hand, I found the complainant to be a credible and cogent witness and her testimony was consistent with the facts as presented in the case. In weighing up all the evidence, I am cognisant that employment equality case law expects that an employer is proactive in considering the forms of suitable reasonable accommodation which could apply to employees or potential employees; that the employer carries out a full assessment of the need of the person with the disability; that the employer consults with the person with a disability throughout the process and becomes aware of the individual needs of the employee and what is required by way of medical or occupational assessment (including taking account of the findings of this assessment). I find that the respondent did not carry out a thorough assessment in relation to the needs of the complainant as outlined above. The complainant was not allowed a full opportunity to participate at each level as outlined in the Humphrey’s v Westwood Fitness Club. Having evaluated all the evidence and testimony on this issue, I find that the complainant has demonstrated evidence of a prima facie case of discrimination on grounds of her disability and the respondent has not rebutted this evidence.
6. Decision of the Equality Officer
6.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2011. I find that:
(i) the respondent did discriminate against the complainant on the disability ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment;
(ii) the respondent did discriminate against the complainant and failed to provide her with reasonable accommodation in accordance with section 16 of the Acts;
Under section 82 of the Acts, an Equality Officer may order re-instatement of the complainant in circumstances where a finding of discrimination has been made. It has been the practice of this Tribunal in cases where discrimination has been held to occur, to place the complainant in the position s/he would have been in had the discriminatory treatment not taken place. Therefore, I direct that the complainant be re-instated in the “Bio-Clean” area. I also direct an award of financial compensation. Accordingly, I direct that the complainant be paid an award of €20,000 which equates to six months salary. This is in compensation for the effects of the discrimination and does not contain any element of pay and is therefore not subject to PAYE/PRSI.
____________
Valerie Murtagh
Equality Officer
27 February, 2015
Footnotes
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.