EDA1517

In a decision dated 2 July 2015, and bearing reference number DEC-E2015-041, the Equality Officer found that the Respondent had not discriminated against the Complainant either in relation to conditions of employment or in relation to the provision of reasonable accommodation. By notice dated 16 July 2015, the Complainant appealed to this Court.

A written submission was received from the Complainant on 28 August 2015 and a replying submission was received from the Respondent on 17 September 2015.

The Court heard the appeal on 11 November 2015.

Background

The Respondent designs, manages and delivers on-site service solutions to a diverse range of businesses. The services offered by the Respondent include catering, cleaning, building maintenance, reception and security. The Complainant was employed as a security guard at Cappagh Hospital in Finglas, Dublin. His employment in that capacity commenced in June 2006 and transferred to the Respondent in July 2012, following a series of changes in service provider.

The Complainant was one of three security guards at the Cappagh Hospital site each of whom worked an established pattern of three 12 hour shifts over a 7-day week which included day and night shifts. His basic hourly rate of pay was €10.75 per hour; he was paid a night shift allowance of €13.00 per night and also received a Sunday premium. The Complainant resigned his employment by email on 1 September 2014.

The Facts

The principal facts in this case are not in dispute. It is common case that the Complainant first informed the Respondent on 17 October 2012 that he suffered from a rare condition known as Cataplexy. The condition renders the Complainant liable to lose control of his body in situations of heightened emotion, stress or tiredness. The Respondent accepts that the Claimant’s condition is a disability for the purposes of section 6(2)(g) of the Act.

It is evident from the submissions received by the Court that the Respondent, shortly after having been informed of the Complainant’s condition, made efforts to learn more about the nature of the condition and to understand how that condition might impact on the Complainant’s job. The Respondent requested permission from the Complainant to contact his General Practitioner in this regard. The Complainant Initially refused permission for this. However, he provided the Respondent with a detailed letter from the office of his Consultant Neurologist on 16 January 2013.

On 23 May 2013, the Complainant submitted a medical certificate in which his GP confirmed the diagnosis of Cataplexy and advised that the Complainant should be rostered to work during day time only. The Complainant subsequently submitted a report from his Neurologist which advised that the Complainant’s condition is exasperated by fatigue and unusual sleeping patterns and that it would be more appropriate for the Claimant to work either all nights or all days but not shift work.

The Complainant suffered an attack of Cataplexy in the workplace on 18 May 2013. Following this the Complainant went out on sick leave, initially for a week with effect from 24 May 2013. He resumed work for a short period thereafter; his last day of attendance at work was 9 June 2013. He submitted medical certificates and reports up until mid-March 2014. His absence thereafter until his resignation on 1 September 2014 was uncertified.

Between May 2013 and March 2014, the Complainant was referred on two occasions to the Respondent’s occupational health advisor (28 June 2013 and 5 December 2013). Three further reports were received during that period from the Complainant’s Neurologist (23 July 2013, 17 December 2013 and 6 March 2014). The Complainant also met with the Respondent’s Welfare Officer in August 2013.

The thrust of the initial reports prepared by the Complainant’s Neurologist was that the Complainant was fit to work but that it would be more conducive to better overall control of his medical condition if he could be facilitated with more regular hours (whether during the day or at night) that excluded shift work. The Respondent’s occupational health advisors, however, determined following a referral on 5 December 2013, that the Complainant was at that time unfit for work due to unrelated medical symptoms. This was effectively confirmed by a subsequent report dated 17 December 2013 from the Complainant’s Neurologist who also advised that the Complainant was unfit for work until further notice.

Position of the Parties

The Respondent

During the course of the hearing, the Respondent’s representative submitted that in all the circumstances the Respondent had no obligation to the Complainant under section 16 of the Act and that the Respondent had gone over and above its legal obligations to the Complainant in its attempts to facilitate his return to work. The Respondent cites the following examples of its efforts in this regard:

• 
  •In May 2013 the Complainant requested an alteration to his working pattern which would allow him to work a night shift on Tuesday rather than on a Thursday as he was experiencing difficulties in adjusting to working days on Saturday and Sunday following the Thursday night shift. The Respondent considered this proposal and submitted email correspondence as evidence of its efforts to see if the Complainant could be facilitated. Ultimately, it did not prove possible to accede to the request for logistical reasons.

  •In or around the same time, the Respondent proposed a new roster arrangement which would have permitted the Complainant to work days only i.e. two 12-hour shifts per week. The Complainant was not willing to accept a reduction in his total weekly hours and rejected this proposal for that reason.

  •The Respondent’s Welfare Officer advised the Complainant in the course of a meeting in early August 2013 that the Respondent was willing to facilitate his return to work at that stage on a nights only basis. However, the Complainant advised that he was unfit to return to work in any capacity at that time.

  •The Respondent offered the Complainant the opportunity to move to an alternative site, outside Dublin, where he could be guaranteed more regular hours. (The Respondent was not operating any security contracts in the Dublin area at the material time, other than at the Cappagh Hosptial site.) The Complainant also declined this offer as he did not wish to move from Dublin and be at a distance from his GP and Neurologist.

The Complainant submits that he was treated less favourably generally than his colleagues who do not have a disability. He submits that the Respondent’s proposals to offer him reduced hours (either all day time hours or night time hours) amounted to less favourable treatment. He also submits that the Respondent failed to make reasonable accommodation for his disability.

Less Favourable Treatment

Section 8(1) of the Act,inter alia, prohibits discrimination of an employee by his or her employer, on any of the grounds specified in section 6, in relation to access to employment, conditions of employment etc. The only example of alleged less favourable treatment cited by the Complainant in this case was the Respondent’s proposal to reduce his working hours.

As discussed above, it is common case between the Parties that the Complainants medical advisors had consistently suggested that it would be in the Complainant’s best medical interest if he could be rostered on days only or nights only. The Respondent made two separate proposals to the Complainant: one, if it had been accepted, would have allowed him to work days only; the other would have allowed him to work nights only. Either would have resulted in a 33% reduction in the Complainant’s total weekly hours. There were only 2 other security guards employed on the site. The Court accepts the Respondent’s submission that they were not willing to amend their existing working hours so as to facilitate rostering the Complainant for a 36 hour week of all days or all nights. The Court does not accept that in the circumstances, the Respondent’s proposed revised rosters amounted to discriminatory treatment contrary to the Act.

The Requirement to Make Reasonable Accommodation

Section 16(3) and (4) of the Act provide:

• “(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.

  (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 himself or herself;]

  “employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

  (a) such a person who is seeking or using any service provided by the employment agency,

  (b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

  (c) such a person who is a member of or is seeking membership of the regulatory body.”

Article 5 of the Directive provided: -

• “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

• “In accordance with the second paragraph of Article 2 of the UN Convention, 'reasonable accommodation' is 'necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms'. It follows that that provision prescribes a broad definition of the concept of 'reasonable accommodation'.”

Conclusion

The Complainant failed to adduce any evidence to the Court from which it could draw an inference that he had been treated less favourably by the Respondent as a consequence of his disability.

The Court does not accept the Respondent’s submission that it was not required to make reasonable accommodation for the Complainant pursuant to section 16 of the Act and that it was effectively exceeding its legal obligations by attempting to facilitate his return to work on a revised work pattern. The Respondent’s proposals in this regard, and its offer to relocate the Complainant to an alternative site outside the Dublin area, in the Court’s opinion, come squarely within the ambit of reasonable accommodation and appropriate measures as envisaged by section 16 of the Act.

Determination

For all of the reasons set out herein the Court is satisfied that the Complainant was not, as a consequence of his disability, treated less favourably with regard to his conditions of employment. The Court finds the Respondent had a duty under section 16 of the Act to make reasonable accommodation for the Complainant and that it discharged its duty to him in this regard.

The decision of the Equality Officer is, therefore, affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Alan Haugh
23rd November 2015______________________
AHDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.