DEC-E2015-131

EMPLOYMENT EQUALITY ACTS 1998-2011

DEC-E2015-131

Ms P

(represented by Thomas Wallace-O’Donnell B.L instructed by Alec Gabbett, Leahy and Partners Solicitors)

-v-

A restaurant in Limerick

File reference: EE/2013/170

Date of issue: 25th November 2015

Keywords: Employment Equality Acts, Disability, Discriminatory dismissal, reasonable accommodation, Epilepsy

Dispute

1.1 The case concerns a claim by Ms P against a Limerick restaurant. Her claim is that she was discriminated against on the grounds of disability in terms of 6(2)(g) of the Employment Equality Acts 1998 - 2011 [hereinafter referred to as ‘the Acts’] leading to dismissal.

1.2 Through her solicitor, the complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 10th April 2013. On 24th April 2015 in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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 this date, my investigation commenced. Submissions were received from both parties and a joint hearing was held on 5th May 2015 as required by Section 79(1) of the Acts.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015. In disability cases, the usual policy is to anonymise both parties.

Summary of the complainant’s case

2.1 The complainant commenced employment as a Restaurant supervisor with the respondent on 26th November 2012. At all material times the respondent was aware and the complainant never sought to conceal that she was a person with epilepsy. She specifically mentioned it in the staff medical questionnaire when she commenced employment. In the same questionnaire she stated that she was “two years seizure-free. Well under control”. Ms P submits that she manages her condition: she chooses not to drive and does not drink alcohol. The complainant worked both night and day shifts but primarily the former. She submits that on one occasion working with the respondent she finished at 05:00 and had to be back into work at 10:00 that morning.

2.2 On or about 5th December 2012, the complainant experienced an epileptic seizure while at work with the respondent. She was then effectively demoted as a supervisor. On 17th December 2012 the complainant was assessed by the respondent’s Occupational Health Physician (Medmark) who noted that she was being affected by the lack of a consistent sleep cycle due to being switched between day and night shifts and recommended that she work daytime shifts in the future.

2.3 On or about Christmas Eve 2012 despite the respondent physician stating that she was capable of work with the reasonable accommodation he suggested above, her employment was terminated without notice. At this meeting with Mr C [director of the company] kept saying this was not a dismissal. She submits that she asked whether she would be receiving a P45. Mr C replied in the affirmative. M P maintains that that the doctor said she would be able to work the 12:00 to 20:00 shift – that the problem was finishing late and starting early. She states that Mr C said that he would not be changing his mind. The complainant maintains that she very much enjoyed her role there and had a lot to offer as her family background is in the restaurant business. She submits that as a supervisor she could easily have been accommodated on the early shifts. The complainant maintains that a pregnant employee was immediately accommodated when she requested to be rostered on days on request. She said the manner of her dismissal knocked her confidence especially as she did not see it coming and that it occurred so close to Christmas.

2.4 Following her employment being terminated by the respondent, she attended her consultant. He said that sleep deprivation rather than working at night is a trigger for her epilepsy. She currently works the 14:00 to 22:00 shift in an IT company which causes no problems as she has adequate sleep to recover before starting work the next day. Not long after working for the respondent, she worked in a Chinese restaurant. As she did for the respondent, she declared her epilepsy. They conducted a risk assessment and she continued to work there without difficulty until she commenced employment with her current employer (who pays more which is why she left).

Summary of the respondent’s case

3.1 The respondent acknowledges that the complainant stated that she had epilepsy at the interview. Regarding being two years seizure free, the respondent submits that she lied about this this as she had an epileptic attack at her workplace in the month prior to employment by them.

3.2 In the email submitting her CV the complainant stated ‘I will be honest and say I am not as flexible as most candidates as I can only do evening shifts, anything from 4 in the day during the week but I can do every day in the week after 4.‘ The respondent’s restaurant did not open until noon. Therefore the first shift was from 12:00 to 20:00 and the second shift was from 20:00 until 04:00. Occasionally the complainant worked the early shift but she mainly worked the second shift.

3.3 The respondent submits that it is well aware of their responsibilites as an employer which is why they referred her to Medmark after her seizure at work. Below is the text from the Occupational physician’s report which the respondent received on 20th December:

Occupational history

Ms P commenced a new position as a restaurant supervisor in November 2012. Prior to this position she worked in mainly daytime activities for the last two years.

Reason for referral – nature of illness/injury

Ms P informed me that she enjoys her current role. Recently she had a full-blown epileptic seizure at work. She sustained a laceration to her chin. She remains under the care of the hospital and is benefiting from medical intervention. Thankfully her laceration is likely to settle shortly. Thankfully she has not developed a long term complication associated with her recent seizure at work.

This lady has a history of epilepsy for many years. I am happy to report that over the last two years she had no problems with her epilepsy.

In my experience patients with epilepsy can increase incidents of seizures if working shifts, particularly nights. Sleep deprivation is a significant reason for patients experiencing an increase in seizure activity. I notice this lady works two shifts from 11:30 a.m. to 8:00 pm or 8:00 pm to 5:30 am[1].

The lady’s epilepsy is otherwise well-controlled. I anticipate her epileptic condition will remain stable going forward provide she participates in a regular sleeping pattern. She is under the care of her GP and is due to reviewed by her specialist shortly. If eel these interventions are likely to ensure continued successful management of her medical condition. . This lady, in my opinion, has a medical condition that prevents her from working shifts, particularly nights, long-term.

I feel this lady is currently fit to work daytime shifts only. She is not medical fit to work nights or a shift pattern incorporating night-time work. I feel if this lady can be accommodated with working days only she is likely to remain well in regular employment. If this lady is required to work shift involving night-time work, she is without doubt at increased risk of having seizure complications going forward.

I am concerned if this lady is required to return to shift pattern, involving nights, going forward. I feel the risk of unpredictable epileptic seizure in the short to medium term. This regretably could result in harm to the patient and her colleagues in the workplace. I feel it is unsafe for this lady to continue in employment if required to work shifts involving night-time working going forward.

3.4 The respondent submits that the employment relationship ended by mutual consent. The respondent maintains that the early shift finished at 20:00 which is night-time so they could not accommodate her, as per medical advice. The respondent submits that the other workers would not change their roster just to accommodate her.

Conclusions of the Equality Officer

Dispute of facts

4.1. Before turning to the legal arguments there are some pieces of evidence where the complainant’s version of events clashes with that of the respondent. Regarding the witness statement that stated the complainant had a seizure in her previous employment, the witness gave credible evidence that she was never an employee there. The complainant is of Italian extraction as were the restaurant owners (they originate from the same village in Italy) and she helped out when they were busy. She submits that she did not have a seizure nor did an ambulance come. Ms P also gave cogent evidence that the person who provided the written statement (involving fraud, discovered by the complainant, from a close friend of hers) was a hostile witness. I note the respondent did not bring the person who wrote the statement (even though they had previously written to the Tribunal to state that he would attend) as a witness to give direct evidence and be cross-examined. I see this as an attempt to smear the complainant and it does not assist the respondent’s case. I also note that the Occupational physician who could obtain access to the complainant’s medical records stated in his report that she was seizure-free from two years. Therefore I prefer the complainant’s evidence on this issue.

4.2 The complainant does not dispute that when applying for this position she stated that her preference would be to work in the evenings. She submits that this was because she intended undertaking a course in the mornings. However, she was scheduled for the early shifts despite requesting not to be. She submits that she really enjoyed the job and wanted to keep it so she never started the course.

4.3 The respondent did not refute that an employee who on informing them that she was pregnant was immediately put on days.

The Law

4.4 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 respondent dismissed Ms P on the ground of disability and/or whether the respondent is entitled to avail of the Section 16 defence. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

4.5 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 facie case is established and the burden of proof shifts to the respondent.

4.6 Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(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 is not in dispute that epilepsy is a disability within the meaning of the Acts. Neither is it in dispute that the complainant made the respondent aware of her disability.

4.7 Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in not retaining a person as an employee. 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 her 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.

Guidance is provided in Section 16(3)(c) on how to determine whether the measures would impose a disproportionate burden:

(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.

4.8 The seminal case on discriminatory dismissal on the ground of disability is determined by the Labour Court - A Health Club and A Worker It is worthwhile to quote the relevant paragraphs:

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 complainant 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 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 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. [my emphasis][2]

Without doubt, this assessment is an onerous process for employers. It is worth bearing in mind why this burden is placed on them. Recital 16 of the relevant EU Directive states ‘the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination’.[3]

4.8 Despite the respondent’s protestations that it was not a dismissal, it clearly was. There was no mutuality in the arrangement. Indeed the letter sent by respondent on 15th January clearly confirmed that Ms P’s employment was terminated rather than she resigned. The first sentence of that letter is ‘You have asked me to provide you with a letter setting out the reason why your employment ended with [the respondent].’ The respondent went through some of the motions necessary to defend a discriminatory dismissal claim i.e. Ms P was referred to their Occupational Health Physician. However, it did not comply with the second stage as envisaged in AHealth Club and A Worker i.e. examining what reasonable accommodation options could be explored to allow Ms P to continue to work there.

4.10 The Labour Court has given a useful precis in An Employer and A Worker on the approach to be taken when exploring reasonable accommodation options:

The provision of special treatment or facilities is not an end in itself. It is a means to an 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 as 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 test which must have regard to all the circumstances of the particular case.[4] [my emphasis]

To avail of the Section 16 defence an employer must show genuine engagement with the process of finding effective and practical measures to allow an employee to remain at work. The report of the Occupational Health Physician did not recommend dismissal. From my reading of his report, he gave a practical option – put Ms P on the early shift. The respondent argued that the doctor meant that the complainant could only work in daylight hours. However, in direct evidence, the respondent admitted that they did not revert to the doctor to see whether that extremely narrow interpretation of what he wrote is what he intended to say. Especially when she was a supervisor, this is an appropriate measure. Avoiding doing this because it would disgruntle other employees, as the respondent argued, is not an adequate defence under the Acts –see Section 16(4)(b).

4.11 There are a number of other aspects of the process where the respondent was remiss. Ms P was an exemplary employee in that she immediately declared her disability, did not undertake a course that she intended to do as it would conflict with the working arrangements imposed by the respondent and willingly went to the Occupational Health Physician. However, the respondent did not extend her the same courtesy. She was given no notice of her dismissal – in fact she was ambushed with it on the day before Christmas Eve. Neither she nor her doctors were allowed to feed into the process in any way. No risk assessment was carried out. I also note that she continued to work after her seizure but no longer was given management responsibilities. No appeal of the dismissal was allowed.

4.12 I will now turn to whether the costs of reasonable accommodation would impose a disproportionate burden on the respondent. In direct evidence, the respondent stated that they were very happy with her work. Therefore it would seem to have made business sense to retain her. In fact she got paid €9.35 per hour before 22:00 and €10.35 per hour after that. It actually would have been less expensive to roster her for the early shifts.

4.13 To reiterate, the respondent was not pro-active in exploring appropriate measures to accommodate Ms P specifically the one recommended by their Occupational Health Physician. Neither am I satisfied that this recommendation reasonable accommodation would have placed a disproportionate financial burden on the respondent. Therefore, the complainant has established a case of discriminatory dismissal on the grounds of disability and the respondent cannot avail of the defence in Section 16.

4.14 As this restaurant has closed down although the company is still trading, I find that compensation is the appropriate form of redress. I must take cognisance of the effect a dismissal has on a person including the financial and social implications. Penalties are required to be effective, proportionate and dissuasive. I was shocked to discover that since the enactment of Employment Equality Act in 1998 there have been seven discriminatory dismissal complaints upheld in either the Equality Tribunal or the Labour Court specifically connected to the condition of epilepsy.[5] As far as I know, no other disability has attracted as many discriminatory dismissals. Clearly there is a lack of awareness among employers that most people with epilepsy can do what people without epilepsy can do -including being employed in responsible roles. In a disability dismissal case which mirrors this one i.e. the complainant was a person with epilepsy who was only employed with the respondent for a short time, the Labour Court awarded £15,000 (€19,046.07).[6] In this case, I think a similar award is appropriate which is the equivalent to approximately one year of the complainant’s salary - €20,000.

Decision

5.1 I have concluded my investigation of Ms P’s complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that

(i) the respondent has discriminatorily dismissed the complainant on the ground of disability

(ii) the respondent hasfailed to provide appropriate measures that would allow the complainant to continue to be employed by them

Therefore, I find for the complainant.

5.2 In accordance with Section 82 of the Act, I order the respondent:

pay the complainant €20,000 in compensation for breaches of the Employment Equality Acts. The award is redress for the infringement of Ms P’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

_______________

Orlaith Mannion

Adjudication Officer/Equality Officer

[1] I note that these are different work patterns that those stated by the respondent.

[2] Determination No. EED037

[3] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation Official Journal L 303, 02/12/2000 P.0016 -0022

[4] EDA0413

[5] Search by ‘epilepsy’ in www.workrelations.ie

[6] Labour Court Determination No.EED013 A Computer Component Company and A Worker