DEC-E2015-103

EQUALITY OFFICER'S DECISION NO: DEC-E/2015/103

PARTIES

Noni Lee Hepple

(Represented by Hamilton Turner, Solicitors)

Vs

University of Limerick Foundation
(Represented by Holmes O'Malley Sexton, Solicitors)

FILE NO: EE/2013/289 DATE OF ISSUE: 12th of October, 2015

1. Dispute

This dispute involves a claim by Ms. Noni Lee Hepple that she was discriminated against by the University of Limerick Foundationon the grounds of her disability in terms of section 6(2)(g) and contrary to section 8 of the Employment Equality Acts, 1998 and 2008 in relation to her dismissal and in relation to a failure to provide her with reasonable accommodation for her disability.

2. Background

2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2008 to the Equality Tribunal on 12th of June 2013.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2008 the Director delegated the case on 11th of June, 2015 to me, Orla Jones, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 15th of July, 2015.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st of October, 2015, as an Adjudication Officer who was an Equality Officer on that date.

3. Summary of complainant’s case

3.1 It is submitted that the complainant was employed by the respondent, as a Database Co-ordinator from 18th of February, 2002 to 21st of January, 2013.

3.2 The complainant was diagnosed with Chronic Fatigue Syndrome in 2007 following an illness in November 2006.

3.3 The complainant notified the respondent of her illness in early 2007 and requested and was granted the accommodation of reduced hours.

3.4 It is submitted that the complainant is capable of doing her job

3.5 The complainant was referred by the respondent for medical assessment in December, 2012.

3.6 The complainant was dismissed on 21st of January, 2013. The complainant submits that this dismissal was due to her disability.

4. Summary of respondent’s case

4.1 The respondent, agrees that the complainant was employed with them from 18th of February, 2002 to 21st of January, 2013.

4.2 The respondent agrees that the complainant notified them of her disability in early 2007 and was accommodated with reduced hours.

4.3 The respondent disputes that the complainant is fully capable of doing her job.

4.4 It is submitted that the complainant’s employment was terminated on 21st of January 2013 due to redundancy of the position of Database Co-ordinator.

4.5 It is submitted that a number of other redundancies had also taken place in the respondent organisation.

5. Disability Ground and Notification of Disability

5.1.1 It is submitted that the respondent accepts that the complainant has a disability for the purposes of the act.

5.1.2 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

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”.

5.1.3 It is submitted that the complainant is suffering from Chronic Fatigue Syndrome which she was diagnosed with following an illness in November 2006. The complainant advised the hearing that her disability means that she suffers from debilitating levels of tiredness which leads to her sleeping for exceptionally long periods, sometimes for days at a time. The complainant advised the hearing that this can be aggravated if she comes into contact with a virus and that she experiences good periods and bad periods in respect of levels of tiredness. Medical reports were also submitted detailing the complainant’s condition. The respondent advised the hearing that it accepts that the complainant has a disability for the purposes of the act. I am satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2008 and that the respondent was aware of the complainant’s disability.

6. Findings and Conclusions of the Equality Officer

6.1 The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of her disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2008, in relation to the termination of her employment. In addition, I must consider whether the respondent failed to provide the complainant with reasonable accommodation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

6.2 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. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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”.

6.3 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.

6.4 Discriminatory Dismissal

6.4.1 The complainant has submitted that she was dismissed from her employment in January 2013. The complainant advised the hearing that she was called to a meeting on 21st of January, 2013 where she was told her employment was to be terminated. The complainant advised the hearing that she was asked to attend the meeting by Mr. C and was told that she could bring a support person with her. The complainant stated that she asked her supervisor, Ms. H to attend the meeting with her. The complainant advised the hearing that she was not advised of the reason for the meeting but stated that she had assumed that the reason was due to the fact that she had been referred by the respondent for medical examination in December 2012 and she had assumed that the medical report had indicated that she was not fit to work. The complainant stated that she had not yet seen the medical report.

6.4.2 The complainant advised the hearing that she had been sent for a medical assessment by the respondent in December 2012. The complainant had attended with Dr. F., Occupational Physician. Dr. F.’s report is dated 10th of December, 2013 and was presented in evidence.

6.4.3 The complainant advised the hearing that Mr. C and Mr. R from the respondent’s HR were present at the hearing. The complainant stated that Mr. C advised her at the meeting that her services were no longer required and that an exit package had been prepared. The complainant advised the hearing that she had not at the time of the January 2013 meeting, yet seen Dr. F.’s report and so had assumed that was the reason for her termination of employment. The complainant when questioned could not say for definite whether it was she or the respondent who first raised the issue of the medical report at the January 2013 meeting.

6.4.4 The complainant stated she had during the meeting advised the respondent that she had not seen the doctor’s report and requested a copy of same. The respondent advised her that a copy would be sent to her. The complainant stated that, Mr. R at that meeting also referred to the fact that ‘this’ (the termination of her employment) ‘might be the best thing for her’ and referred to her health problems. She stated that Mr. R also referred to the fact that he knew people with health problems who found that their health had improved once they had stopped working.

6.4.5 The respondent advised the hearing that the complainant was called to a meeting on the 21st of January, 2013. The respondent stated that the complainant was advised at this meeting that her position was to be made redundant due the fact that they no longer had a need for a database co-ordinator. The respondent advised the hearing that this was unrelated to the complainant’s disability. The respondent stated that the complainant had been referred for medical assessment in December 2012 and that a report had issued from Dr. F. on the 10th of December 2012. The respondent stated that the complainant had been referred for medical assessment following an incident, in November 2012 where she had failed to show up for work for a period of 5 days and had not contacted the respondent. It emerged at the hearing that this period of 5 days had started on a Friday and ended on a Tuesday when the respondent had contacted the complainant’s son and asked him to call to the complainant to check on her.

6.4.6 The complainant advised the hearing that she had phoned in sick on the Friday in question but stated that she did not contact the respondent on the following Monday as she had slept through and her two phones were dead as a result of her not waking up and failing to charge them. The respondent at the hearing couldn’t say if the complainant had called in on the Friday but conceded that there was no obligation on the complainant to contact them over the weekend but stated that she had not phoned in on the following Monday. The respondent stated that Ms. H had on the Tuesday gone to the shop where the complainant’s son worked and asked that he check on the complainant. The complainant following this contacted the respondent and explained that she had slept through Monday and Tuesday and so had been unable to contact them. The complainant advised the hearing that she had received a verbal warning from the respondent following this incident and that she was referred for medical assessment to Dr. F. in December, 2012.

6.4.7 The complainant advised the hearing that she had not seen a copy of Dr. F.’s medical report and so, when she was called to the meeting in January 2013 had assumed that the doctor’s report had deemed her unsuitable for work. The respondent advised the hearing that it had received the report of Dr. F. in December 2012. This report confirmed the complainant’s condition and stated that the complainant’s condition did not seem to have improved despite reducing her working hours and that Dr. F. was of the opinion that her ability to work would not improve with the passage of time.

6.4.8 The respondent submitted prior to the hearing that the complainant was unable to do her job even with the accommodation of reduced hours. The respondent referred the complainant for medical assessment in December 2012. One of the conclusions reached by the medical assessor was that the complainant’s ability to attend work was not likely to improve. This report also referred to a proposed consultation with the complainant’s GP. It would appear that the consultation with the complainant’s GP did not take place.

6.4.9 The respondent in its evidence submits that the complainant’s employment was terminated in January 2013 due to redundancy. The respondent went on to state that a number of positions had been made redundant prior to this period and stated that voluntary redundancies had been offered to all staff in 2009. The complainant had at the time declined the voluntary redundancy but 3 other staff took redundancy at the time. The respondent advised the hearing that the complainant’s role centred around seeking funding for the University and retaining a database of contacts and funds. The respondent stated that historically it had also involved contacting those people on the database twice yearly requesting donations for the University. The respondent stated that the recession meant that it was no longer feasible to contact these individuals and seek donations as it was considered to be in bad taste at a time when people were struggling financially. The complainant herself at the hearing conceded that her role was not as busy as it had been in the preceding years.

6.4.10 The respondent at the hearing did not provide any documentary evidence to support the assertion that a redundancy situation had arisen. There were no minutes of meetings or documentary evidence to indicate that any discussions had taken place in relation to a redundancy situation. The respondent also did not provide any evidence that any other roles had been considered for redundancy at that time or that any other roles had been considered for the complainant or that any other options had been explored.

6.4.11 While it may well be the case that the complainant’s role had decreased and may possibly have been considered for redundancy or reorganisation by the respondent at some point in time however, the proximity to the complainant’s medical assessment (5 weeks between both) leads me to conclude that there was some connection between the complainant’s disability and the termination of her employment. The respondent, prior to the hearing submitted that the complainant was incapable of doing her job, it seems to be the case that the respondent sent the complainant for a medical assessment due to its view that she was not capable of doing her job. The medical report does not however state that the complainant is incapable of doing her job only that her ability to attend work is unlikely to improve, and the respondent at the hearing argued that the complainant’s redundancy was unrelated to her disability.

6.4.12 It is evident from the submissions made and from the evidence adduced that the respondent was aware of the complainant’s disability, after which a decision was made to dismiss the complainant. It is the respondent’s position that the complainant’s employment was terminated on grounds of redundancy. However, it has been established that the complainant in this case suffers from a disability and that the complainant had been the subject of a medical assessment 5 weeks prior to the termination of her employment. The medical assessment was arranged by the respondent following a period of absence from work by the complainant, an absence which the complainant submits was due to her disability.

6.4.13 Furthermore, although it is the respondent’s contention that the complainant was dismissed due to redundancy the fact that such redundancy arose just 5 weeks after the complainant’s referral for medical assessment by the respondent, in addition to the respondent’s submission that the complainant was not fully capable of doing her job leads me to conclude that the two events are connected. In addition, I cannot ignore the evidence adduced that Mr. R at the January 2013 meeting where the complainant was notified of her termination of her employment referred to the complainants health issues and the fact that finishing work might ‘be the best thing for her’. I am satisfied that the complainant’s disability did influence the respondent’s decision to terminate her employment.

6.4.14 Accordingly based on the totality of the evidence adduced on this issue I am satisfied that the complainant has established a prima facie case of less favourable treatment on grounds of disability in relation to her dismissal which the respondent has failed to rebut. I am thus satisfied that the complainant was discriminated against on grounds of disability in relation to her dismissal.

6.5 Reasonable accommodation

6.5.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) – this approach was endorsed in Humphries v Westwood Fitness Club[1].

6.5.2 I am satisfied from the evidence adduced above that the complainant was a person with a disability for the purposes of the Act and that the respondent was aware of that disability. It is a fact that the complainant was notified of the decision to terminate her employment on 21st of January, 2013. I have found that the decision to dismiss was influenced by her disability due to the fact that the respondent had referred her for medical assessment in December 2012 following an incident where she had been absent from work for a number of days due to her disability and during which she had failed to notify the respondent of the reason for her absence. The medical report which issued on 10th of December 2012 indicated that the complainant’s ability to attend work was unlikely to improve.

6.5.3 The respondent once armed with the knowledge that a contributory factor to the complainant’s poor attendance at work and absence periods related to the complainant’s disability was at this point obliged as per Section 16(3) of the Acts to make a proper and adequate assessment of the situation before taking a decision to dismiss the complainant.

6.5.4 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground 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 have been employed.

6.5.5 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court set out the approach that should be taken in order that an employer can rely upon this defence, namely:

"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.

6.5.6 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent, and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court where Dunne J.[3] found that an employer that has failed to go through the aforementioned process orientated approach 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.

6.5.7 In applying the Labour Court ruling in 'A Health and Fitness Club Vs A Worker' referenced above, it is clear that there was an obligation upon the respondent, in the first instance, to ascertain the level and extent of the complainant’s disability. The respondent, in this case, when faced with a situation where an employee was absent from work for a number of days and failed to make contact with the respondent, did make some enquiries to ascertain the extent of the employee’s condition and referred the complainant for medical assessment by Dr. F., Occupational Health Services in December 2012. The respondent, in this regard, did comply, in part, with its obligations under Section 16 (3) by making enquiries to ascertain the extent of the employee’s condition and referring her for medical assessment.

6.5.8 I am of the view that the respondent, following the December 2012 Medical Report, when it became aware that the complainant’s ability to attend work was unlikely to improve , was then obliged upon to make further inquiries into what if any special measures could be taken to assist the complainant in fulfilling her role.

6.5.9 The complainant in this case, had notified the respondent of her disability in early 2007 and had submitted medical reports from her doctors in 2008 and 2011. The respondent advised the hearing that it had following this notification accommodated the complainant by granting her more flexibility in her working hours. The complainant advised the hearing that she was allowed to reduce her hours of work and to avail of a later start time of 11.00 am, initially which then moved back to 10.00 am after a number of months. The respondent advised the hearing that the complainant was also permitted to reduce her working week to four days consisting of 3 full days and 2 half days. There was no medical assessment of the complainant’s condition by the respondent at that stage and the accommodation of reduced hours was agreed between the complainant and the respondent following a request from the complainant’s doctor.

6.5.10 The respondent advised the hearing that over time this later start time was not sufficient and stated that the complainant still had difficulties in making it in to work on time even with the later start time and reduced hours. The respondent stated that the complainant had often not shown up for work and sometimes did not contact the respondent to give any reason for her lack of attendance. The respondent cited an incident in November 2012 where the complainant had gone missing for a period of 5 days and had failed to contact the respondent during this period until the respondent, out of concern for the complainant made contact with the complainant’s son and asked him to check on the complainant. It emerged at the hearing that this 5 day period spanned a Friday to Tuesday and the complainant stated that she had called in sick on the Friday but had failed to contact the respondent on the following Monday as she had slept through but was woken by her son on the Tuesday.

6.5.11 The respondent prior to the hearing had submitted that the complainant was incapable of doing her job. The respondent at the hearing stated that the complainant was unable to attend work even with the allowance of a later start time and stated that she was regularly late for work or absent completely. The respondent advised the hearing that it had after the November 2012 incident of the complainant having gone missing for a number of days, referred her for medical assessment to Dr. F..

6.5.12 The respondent advised the hearing that the complainant’s employment was terminated due to a redundancy situation. However, I am satisfied that the decision to terminate the employment of the complainant was related to her disability and was influenced by Dr. F.’s Medical assessment of the complainant.

6.5.13 The respondent when questioned at the hearing as to whether alternative roles had been looked at within the organisation which might be suitable for the complainant stated that it had no other suitable positions as the only other staff worked as Personal Assistant’s. The respondent provided no evidence as to whether any other options had been looked at or whether the possibility of further reducing the complainant’s hours had been considered. The respondent on the one hand gave evidence that the complainant’s role had diminished to such a level that the position was no longer required but also stated that it caused an inconvenience when the complainant was absent or late for work to such an extent that the respondent referred her for medical assessment following an absence of 5 days.

6.5.14 Witness for the respondent Ms. H advised the hearing that the complainant’s inability to attend work on time caused some inconvenience especially if a report was required from the database and no one knew whether or when the complainant would be in the office to run such a report. It emerged at the hearing that the respondent had at one point asked that the complainant to revert to a 9 o clock start time. The complainant advised the hearing that she was not at any point engaged in discussions or consultations about this or any other possible alternatives.

6.5.15 The respondent in this case made a decision to terminate the complainant’s employment without consultation with the complainant and the complainant was never asked whether or to what extent special measures could be taken to enable her to fulfil her role. The respondent at the hearing conceded that the complainant was not involved in or consulted in relation to any discussion of potential alternative roles.

6.5.16 I am of the view that there was a clear obligation upon the respondent, when it became aware that the complainant was having difficulties in attending work which the medical report outlined was not likely to improve due to her disability, to consult with her to look at suitable measures and accommodation which would enable the complainant to fulfil her role, as well as to discuss with her and evaluate certain employment alternatives before concluding that there was no suitable alternative employment for her. The respondent was then obliged to inform the complainant, that having concluded that there were no suitable measures or accommodation which would enable her to fulfil her role as required, that she was now being considered for termination. It is clear that the respondent did not bring these issues to the attention of the complainant prior to taking the decision that it could no longer retain her in employment.

6.5.17 Consequently, the complainant was not afforded any opportunity to participate in or influence the decision making process that resulted in her dismissal. In doing so, the respondent, who did initiate the process orientated approach, as set out by the Labour Court in the aforementioned A Health and Fitness Club -v- A Worker case, by making some enquiries to ascertain the extent of the employees condition, then however proceeded to evaluate alternatives and make a decision to dismiss, without involving the employee who was the subject of such a decision.

6.5.18 Having regard to the foregoing, I am satisfied that the respondent, in the present case did make some enquiries to ascertain the extent of the complainant’s condition, but failed to consult with or advise the complainant before coming to the conclusion that the complainant was incapable, on the grounds of her disability, of performing the duties for which she had been employed and therefore it cannot rely upon the defence available in section 16(1)(b) of the Acts. In the circumstances, I find that the complainant’s disability was a factor which contributed to the respondent’s decision to dismiss her and that the respondent failed to provide her with reasonable accommodation within the meaning of section 16 of those Acts.

7. DECISION OF THE EQUALITY OFFICER

7.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2008 I issue the following decision. I find -

(i) that the respondent dismissed the complainant in circumstances amounting to discrimination on grounds of her disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2008 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.

7.2 Section 82 of the Employment Equality Acts, 1998 to 2008 provides that I can make an order for the effects of the discrimination. In considering the redress in this case, I have to be aware that any award for compensation should be proportionate, effective and dissuasive. In making my award, I am mindful of the fact that the respondent, in this case, when faced with a situation where an employee was unable to fulfil her role due to her disability did make some enquiries to ascertain the extent of the employees condition, by referring the employee to an Occupational Health specialist. The respondent then, however, failed to consult with or engage the complainant in evaluating alternatives or in considering what if any special measures could be taken to enable the complainant to fulfil her role and made a decision to dismiss without involving the complainant who was the subject of such a decision. Thus, the respondent failed to consult with, or involve the complainant before coming to the conclusion that the complainant was incapable, on the grounds of her disability.

7.3 The respondent in the present case had submitted that the complainant was dismissed due to a redundancy situation and although I am not satisfied that this was the reason for the termination of her employment and I have concluded that her termination was related to her disability, it is however an undisputed fact that the complainant did receive a redundancy package of 4 weeks pay per year worked plus statutory redundancy, which in the complainant’s case amounted to c. €60,000. In making my award I am mindful of the fact that the complainant did receive a substantial redundancy package however I am also mindful that the complainant’s termination was influenced by her disability and that the respondent, in terminating her employment, failed to provide her with reasonable accommodation for that disability.

7.4 Having taken the foregoing matters into consideration and having regard to the rate of remuneration which the complainant was in receipt of at the relevant time, I consider an award of compensation in the sum of €15,000 to be just and equitable.

7.5 Therefore, in accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I order that the respondent pay the complainant €15,000 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 relation to the above matters, and is not in the nature of pay, and is therefore not subject to tax.

_____________________

Orla Jones

Adjudication Officer/Equality Officer

12th of October, 2015

[1] [2004] 15 ELR 296

[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)

[3] Humphreys -v- Westwood Fitness Club (2004) ELR 296