ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003712

Complaints for Resolution:

Date of Adjudication Hearing: 24/08/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act 1994, and Section 11 of the Minimum Notice and Terms of Employment Act 1973, and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

Preliminary matter under the Employment Equality Acts 1998 - 2015

The Council submits that matters pertaining to her equality claim that relate to events in 2009 are out of time i.e. the allegation that the Council reduced the claimant’s working hours without consultation and the allegation that her employer refused to allow her to drink any fluids or eat any foods in the workplace. Notwithstanding the Council’s position on this matter and without prejudice, the Council does address this matter substantially further down in the submissions.

Background & Council’s Position

The claimant commenced working with the Council on 6^th June 2000 until the cessation of her employment on medical grounds on 12^th February 2016.

She was employed on the Rehabilitative Employment Scheme operated by the Department of Social Protection (DSP). This scheme operates on the broad premise that certain disabled individuals can continue to claim Disability Benefit and other benefits which may be applicable whilst working for a limited number of hours. In this regard, she was originally employed through an intermediary, who put the parties in contact with each other. It is common case that the claimant suffers from Progressive Friedreich’s Ataxia and Hypertrophic Cardiomyopathy. She is under the care of two consultants for these illnesses.

The Council has successfully employed, and continues to employ, a number of such individuals for many years under the same scheme.

The claimant’s duties were largely clerical in nature and mostly based around working with a computer. The range of duties which the claimant was capable of undertaking were narrowed over time due to the progressive nature of her illnesses.

Employment Equality Acts, 1998 – 2015

Section 6(1) of the Acts 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..."

Section 6(2)(f) and (g) of the Acts defines the discriminatory ground of disability as follows – (f)"as between any two persons ..... that they are of different ages but subject to subsection (3) (in this Act referred to as the race ground” and (g) “as between two persons.....that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as the disability ground)...." The issue to decide in this case, then, is whether the complainant was subjected to less favourable treatment in comparison to another person on the ground of age or disability with respect to her cessation of employment on ill-health grounds.

The circumstances surrounding the claimant’s cessation of employment on ill-health grounds on medical advice cannot be construed as to be discriminatory in nature. The claimant cannot show that she was less favourably treated in comparison with any other staff member in this regard. The claimant has not provided any evidence to the effect that there were any persons treated more favourably than she in respect of her cessation of employment which is the date of the final alleged incident. She has, therefore, failed to discharge the onus to establish a prima facie case on that basis. Nor can any alleged mistreatment be said to be that of harassment. In order for harassment to occur there must be evidence to show that the reason her employment was terminated was because of an action the claimant had taken to exercise her rights or entitlements under the Equality Acts.   The complainant’s submission of comparators subsequent to the hearing is rejected.

The claimant has cited discriminatory dismissal in her complaints to the Equality Tribunal. Again, the burden of proof to establish a prima facie case in this regard rests squarely with the claimant before the burden shifts to the respondent to refute such claims. Under Section 6 of the Unfair Dismissals Acts 1977 – 2007 there is no provision for dismissal wholly or mainly resulting from disability. The employment was ceased based on independent medical advice obtained by the Council’s Occupational Health physician in conjunction with the claimant’s own consultants’ advice. The purpose of the Occupational Health referral is to determine whether or not a person suffering from an illness is capable of performing duties, alternative duties and/or that the environment is suitable for their safety and needs. What is taken into account is the employee’s capacity on medical grounds to undertake his / her duties.   Without prejudice to the Council’s position of repudiating any discriminatory dismissal claim, reference is drawn to Section 6(4) of the Unfair Dismissals Act where it is stated ‘without prejudice to the generality of subsection (1) of this Section the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

1. The capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.....’

The issue of the onus of proof was fully considered by the Employment Appeals Tribunal in Pedreschi v Burke UD 591/1999. The claimant submitted that the onus of proof remained on the employer even though she had less than one year’s service. This submission was rejected by the Tribunal, which held that, in such a case, the claimant bore the onus of proof: ‘The claimant must show the Tribunal that it has jurisdiction in the matter. When the claimant successfully shows the Tribunal that her dismissal was, on the balance of probabilities, on the grounds of her pregnancy, or matters relating thereto, the Tribunal will then assume jurisdiction in the matter. In arriving at the decision as to whether a dismissal was on grounds of pregnancy or matters related thereto, the Tribunal will have regard to the evidence of the employer, who will seek to show that the dismissal was justified on substantial grounds, not related to the pregnancy of the employee’.

The EAT also takes the view that it is not its function to establish whether the employee, for example, is in fact incompetent or incapable. If an employee is dismissed for one of those reasons it is sufficient that the employer honestly believes on reasonable grounds that the employee is incompetent or incapable. The requirements were succinctly stated by Lardner J. in Bolger v Showerings (Ireland) Ltd [1990] ELR 184 as follows:

‘In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:

1. It was the ill-health which was the reason for the dismissal

2. That this was the substantial reason;

3. That the employee received fair notice that the question of his dismissal for incapacity was being considered; and

4. That the employee was afforded an opportunity of being heard’.

The Council has met all the criteria set out above in respect of the claimant.

In terms of providing reasonable accommodation for the claimant’s needs the Council strove to maintain her employment for as long as possible over a period of fifteen years. During her tenure, the claimant was provided with the following (list not exhaustive):

• Reduced duties on a sliding scale in accordance with her capabilities

• Pro-active referral to outside bodies in terms of occupational advice and support including the facilitation of personal assistance

• A hoist for lifting

• A specially-adapted keyboard

• Physical assistance from her colleagues for eating and toileting purposes for a number of years

• First aid assistance during coughing / choking episodes

• Representations in her name to the DSP in terms of her potential earnings

Every effort was made to aid and assist the complainant in her working environment. The Council is satisfied that all reasonable accommodations were made and that the claimant has remained in employment for as long as possible.

Due to the perceived worsening health of the claimant, the Council referred her on a number of occasions over the course of her employment to its Occupational Health physician, Dr W. From the supporting documentation provided, it is clear that the Council’s physician had significant regard for consultation with the claimant’s own medical advisors and, indeed, actively sought input from them. The Council has always been mindful of the medical reports received in respect of the claimant and has never behaved in a manner contrary to medical advices.

A health and safety report was requested by the Council in October 2015 on the basis that colleagues were becoming concerned for the claimant’s safety due to alarming coughing fits during which time it would appear that the claimant had stopped breathing. Colleagues of the claimant were not trained medically to deal with such scenarios and believed that their own well-being was affected.

The claimant had the assistance of two personal attendants for toileting purposes who were absent at various times. In their absence, her work colleagues would then be required to provide assistance and support if required.

The Council wishes to confirm that the decision was based entirely on medical reports and advice on what was medically best for the claimant. The complainant has failed to show that her treatment in this regard was any less favourable than to any other person. A reliance on a hypothetical comparator in this case cannot be a comparator who is not disabled as a non-disabled person could not be subject to the same or similar set of circumstances i.e. the subject of medical referral. Therefore, the hypothetical comparator case must fail. Hypothetically, should a non-disabled person become ill or disabled, the Council would seek medical advice in the same manner as that utilised for the claimant.

In terms of medical reports, the Council relies on the various reports included in these submissions and, in particular, the comprehensive report of January 2016 (undated) wherein the doctor refers to a report of the claimant’s own consultant.

It is submitted that the doctor had the benefit of both consultant reports and also has significant occupational health knowledge upon which he based his careful considerations and opinions.

The Council regretfully formed the view that despite earlier significant accommodations made, it could provide no more reasonable accommodations which would meet the Council’s duty of care towards the complainant and towards other employees.   The Council has at all times sought to support the complainant in the workplace. It has also been cognisant of the responsibilities of her work colleagues towards her. The Council has endeavoured to balance these two competing issues but unfortunately this balance is no longer sustainable due to the increasing medical risks to the complainant.

In a supplementary submission, the respondent dealt with the issue of comparators, mainly arguing that the issue of eating and drinking in the workplace did not arise. It was submitted that 3 of the four comparators were not valid, and that no evidence had been adduced to show that the fourth comparator would have been treated differently or more favourably than the complainant.

Terms of Employment (Information) Act

The claimant claims that she did not receive a contract of employment. The Council submits that the claimant was employed under a Rehabilitative Employment Scheme operating through the DSP which operates with its own terms and conditions.

At all times the terms applying to the claimant’s employment were linked to benefits and payments from the DSP. There is no liability on the part of the Council to deduct tax or PRSI, neither is the Council liable for the employer’s contribution of PRSI. Other than paying a remittance not greater than the threshold for which Disability Benefit (and other relevant benefits) is unaffected, there is no liability other than for insurance for the Council. This is substantiated by Memo of the 26^th May 2000.

The Council further relies on correspondence with the DSP making representations on the complainant’s behalf in relation to her terms and conditions of employment. This correspondence was copied to the claimant.

The claimant availed of annual leave and sick leave during the course of her employment in line with organisational policy. All organisational policies are circulated to employees and are available on the Council’s intranet.  

Findings and Conclusions

Complaint reference 00005077-002

I have investigated the complainant’s complaints under the Employment Equality Acts by conducting a hearing and considering further submissions from the complainant’s representatives and the respondent’s representatives which followed the hearing. I have to decide if the complainant was discriminated against by reason of her disability, if the respondent failed to provide reasonable accommodation, if the complainant was dismissed for discriminatory reasons, on grounds of her disability and if she was harassed.

Preliminary issue – time limits

The respondent contends that incidents which occurred during 2009, namely the alleged instruction to the complainant to cease eating and drinking in the workplace and the reduction in the complainant’s hours are out of time.

Section 77 (5) of the Act provides:

“(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

1. On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have no effect as if for the reference period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly”.

The complaints were received on 8^th June 2016. The affect of these provisions is that the complainant can only seek redress in respect of occurrences during the six month period prior to the date on which the claim was received unless the acts relied on constitute ongoing discrimination.       I deem the complainant’s complaints about the complainant’s conditions of employment regarding eating and drinking in the workplace to be ongoing and to be within time.   I find that the reduction in working hours was unilaterally effected in June 2009 and that alleged act of discrimination is out of time.

I note that the WRC procedures provide that respondents should address any preliminary legal issues in writing to the WRC within 21 days of receiving the complaints.

In considering whether a prima facie case of discrimination has been established, I have taken into account the common case that the complainant is covered by the disability ground, she was dismissed on grounds of ill health and she was prevented from eating and drinking in the workplace.   I am satisfied that a prima facie case has been established.

Provision of reasonable accommodation

The complainant stated that the respondent failed to provide reasonable accommodation, specifically that when it was requested by the Central Remedial Clinic (CRC) / Occupational Therapist that she be provided with an iGaze pad to assist her carry out her job, the employer sent her for a medical review which resulted in retirement on medical grounds.

Section 16 (3) of the Act provides:

“(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”.

The test of whether and employer has provided reasonable accommodation is set out in the Labour Court in Humphries v Westwood Fitness Club [2004] ELR 296 in that

1. Factual position: the employer must establish ‘the degree of impairment arising from the disability’ by way of medical assessment / evidence

2. Reasonable accommodation: the employer must consider ‘what treatment or facilities may be available by which the employee can become fully capable’ (considering the cost and viability)

3. Participate: the employee must be allowed participate at each step of the process and have their input.

   In Nano Nagle School v Marie Daly [2015] IEHC, Noonan J. concluded that the Labour Court did not err in law when considering the full issue of reasonable accommodation. He further concluded that the Labour Court did not make any determination that Ms Daly ought to have been accommodated by the school in any particular way. Rather that the Labour Court was of the view that the school simply did not consider the possible options that were available. Had it done so, the Labour Court was of the view that the school might have legitimately have concluded that Ms Daly could not be accommodated. “Had[ the school] given full and proper consideration to these possibilities it might or it might not have concluded that they were viable, reasonable and proportionate in the circumstances prevailing”.

   In this case, I find that the respondent did make many efforts to accommodate the complainant in her place of work over the years. However, significantly when the possibility of providing an iGaze pad was being mooted, there followed shortly thereafter a commissioning of a health and safety report into the “sustainability of (her) current working arrangements”.

   The timing of this report may be coincidental. However, I have taken into account the fact that no further consideration was given by the respondent to the iGaze technology. I have also noted the evidence of the complainant that she was not allowed to participate in the process, having no input into the health and safety report save that of her seating arrangements.

   This case is similar to the Nano Nagle v Marie Daly case, in that while the respondent in this case might very well have concluded that that possible options were or were not viable, reasonable and proportionate in the circumstances, the respondent did not give proper consideration to the options.   I conclude that the respondent failed to consider fully the issue of reasonable accommodation and therefore the complainant must succeed in this part of her complaint.

    

   Discriminatory Dismissal

   In Nano Nagle School v Marie Daly [2015] IEHC, Noonan J. also referred to the Humphries case and stated that the Labour Court’s determination in that case was to the effect that an employee must be allowed an opportunity to make representations to the employer before the employer decides to dismiss him. “As a matter of basic fair procedures it is difficult to argue with that proposition”.

   In this instant case, there is no doubt that the complainant was severely limited by her disability in the range of tasks she could perform. The respondent however, might reasonably have sought an input from the complainant herself and her family before making its decision to dismiss her.   The complainant’s sister’s evidence was that at the dismissal meeting, when the family asked the respondent “Is that it?” (meaning is there no appeal), the respondent stated “Yes, that’s it”.

   The respondent relies on the medical reports of their own G.P. Dr W in asserting that the decision was based entirely on medical reports and advice on what was medically best for the claimant.

   I note that the medical reports which Dr W received from the complainant’s own specialist physicians state inter alia that if it was her own preference, the complainant could be phased out of ongoing employment, and  “she enjoys work and I do not feel that continuing to work is putting her condition or health at any additional risk”.

In a case of dismissal for health reasons, in McKevitt v Bus Atha Cliath Dublin Bus, UD991/2014, the Employment Appeals Tribunal was critical of the fact that no third medical opinion was sought:

“In circumstances where there is conflicting medical opinion and in the interests of fairness, a third independent medical opinion should have been requested. It was not, and the opinion of an expert Consultant was simply ignored”.

In this case, I note that in the final letter of the respondent’s G.P. (undated but stamped received by the respondent on 11^th January 2016), recommending that the complainant be retired on medical grounds, Dr W quotes the complainant’s Consultant Neurologist’s opinion on the complainant’s suitability to continue to work in some detail:

“it is naturally the disease and not the employment that is the risk to (the complainant) and all of the disease-related complications she has experienced will also have an issue at home naturally. However, it is certainly true to say that given her significant disability I think at this stage, if it was her own preference, it would be perfectly reasonable for her to begin to phase out ongoing employment outside the home in favour of receiving long-term disability benefit. The timing and structure of this phasing out process would be something she could discuss with her employer if this is something she has been thinking of herself and I would support it”.

I find that no such consideration of alternatives to immediate dismissal on grounds of ill health was considered or discussed with the complainant.

I further note the recommendations contained in the respondent commissioned “health and safety report” of 2^nd October 2015. These recommend the expedition of medical reports on the complainant, “promptly act” as appropriate, and “reassure relevant employees that progress is being made”. While the health and safety report appears to give equal prominence to the well being of both the complainant and her work colleagues, again, no real consultation with her was carried out.   I find that this report contributed to the respondent’s decision to dismiss the complainant.

For the findings and reasons outline above I find that the complainant succeeds in her complaint of dismissal for discriminatory reasons.

Conditions of employment

-fire safety

I note the respondent’s verbal evidence at the hearing that an “Evac chair” is in use at the offices. This is normal practice at large public employment offices. I do not uphold the complainant’s complaint in this aspect of her claim.

-eating and drinking in the workplace

Under this heading, I have examined the complainant’s claims that she has been discriminated against by reason of her disability in relation to the ongoing instruction to her not to eat or drink in the workplace.   While the complainant’s hours of work meant that she was not strictly entitled to a break in accordance with the provisions of the Organisation of Working Time Act 1997, the evidence is that she was on morning breaks with her colleagues and under instruction from HR not to eat or drink in the workplace. While some evidence was given of physical problems with coughing, no actual medical evidence clearly outlining the requirement to instruct the complainant not to partake of food or liquids in the workplace was not given. In that case, I must conclude that the complainant was treated in a different manner than her colleagues and she succeeds in that complaint of discriminatory treatment in regard to conditions of employment.

Harassment

The complainant alleges harassment in regard to the ban on her eating and drinking in the workplace.

Section 14A(7) of the Acts states:

“References to harassment are to any form of unwanted conduct related to any of the discriminatory grounds … being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

I find that the respondent acted in what they considered to be the best interests of the complainant in banning her from eating and drinking in the workplace. I have dealt with the discriminatory aspect in my findings above. I do not find that the conduct in preventing the complainant from eating or drinking in the workplace had the purpose of violating the complainant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant.   I further find no compelling evidence that the ban had the affect of same and the complainant does not succeed in this aspect of her claim.

Decision:

Complaint reference 00005077-002

I have investigated the complaints and make the following decision in accordance with section 79 of the Acts that the respondent :

• Did not discriminate against the complainant in regard to conditions of employment pertaining to fire safety.

• Did not harass the complainant

• Failed to fully consider the issue of reasonable accommodation to allow the complainant continue her employment

• Discriminated against the complainant in banning her from eating and drinking in the workplace

• Dismissed the complainant in circumstances amounting to discrimination

  In the circumstances, the appropriate form of redress is compensation and I order the respondent to pay the complainant €40,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.

   

Complaint reference 00005077-003

Section 3 of the Terms of Employment (Information) Act 1994 provides that an employer shall furnish an employee with written statement of particulars of employment within two months of commencement of employment. I reject the inference in the respondent’s submission that because the complainant was employed as part of a rehabilitative scheme that she is not entitled to the rights of an employee.   I find that in this case, the respondent failed to comply with the Act. I require the respondent to pay to the complainant the sum of €570 compensation.

Complaint reference 00005077-004

The complainant in this case was entitled to 8 weeks notice and was given 4 weeks.                              

I uphold her complaint and require the respondent to pay to the complainant the sum of €570.

Dated:  20^th December 2016