DEC-E2016-017

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-017

PARTIES

An employee

(Buckley and Company Solicitors)

AND

An employer

(Represented by IBEC)

File reference: EE/2013/308

Date of issue: 5th February 2016

HEADNOTES: Employment Equality Acts Sections 6, 8, Disability Discrimination, Discriminatory Dismissal

1: Background

This dispute concerns a claim by Ms. PK that she was Discriminated against on the grounds of Disability and Dismissed for Discriminatory Reasons, and refused “Reasonable Accommodation” by Employer SC contrary to the Equality Acts.

The Complainant referred a claim to the Director of the Equality Tribunal on the 29th May 2013, under the Employment Equality Acts. On the 12th October 2015, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission delegated the case to me, Michael McEntee, an Equality Officer for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 15th October 2015.

2: Complainant’s Submission

2:1 The Complainant was a Chef employed since 9th December 1996. In 2003 she received a new Contract of Employment to reflect her supervisory duties. She was dismissed on the 3rd December 2012.

2:2 In July 2010 the Complainant commenced a period of Sick Absence due to a wrist injury. This was later diagnosed by a Consultant Surgeon as first dorsal compartment syndrome of the right hand. The Complaint claims that this constitutes a Disability within the meaning of Section 2 of the Equality Acts. Her condition restricted her ability to move and use her wrist such as to amount to a malfunction of her body. The Complaint has undergone extensive treatment for her condition and it is still extant to date

2:3 In August 2011 the Complainant’s GP recommended, as supported by the Consultant in July 2011, that the Complainant, though unfit for manual aspects of her job, could undertake essentially administrative and supervisory elements of her role. The Respondent refused to acknowledge the Supervisory elements of the Complainant’s position and deliberately misrepresented her duties to be that of a Cook only. This constituted an unlawful restriction on her return to work.

2:4: The Complainant stated that at no time did the Respondent contact the Complainant’s medical advisors and no vocational assessor was engaged to review the Complainant’s case.

The Respondent held an internal meeting, the Complainant was not in attendance, on the 28th July 2011 to discuss the Complainant’s medical evidence and alternative work options. The negative conclusions of this meeting were confirmed to the Complainant by letter of the 13th September 2011. The Complainant contended that this meeting was fundamentally unfair and in breach of duties required of an employer by Section 16 of the Equality Acts in relation to proper consideration of alternative work.

2:5: The Complainant attended a meeting with Ms.C. and Mr.O’N of the Respondent on the 4th August 2011. At this meeting she was informed that the medical evidence was that she could not return to work and suggestions of alternative work were dismissed.

In September 2011 the Complainant’s sick pay was ceased. On the 13th October 2011 a further meeting was held between the Complainant and the Respondent (Ms. C and Mr. O’N). A number of alternative positions were referred to by the Respondent but no effective attempt was made to engage proactively as required by Section 16 of the Acts. The Respondent concentrated on her disability and not her ability.

A disciplinary hearing was held on the 3rd October 2011. The Complainant did not attend and was dismissed in her absence.

2:6 In summary the Complaint maintained that through the entire process the Respondent did not adequately consider the medical reports of the Complainant and did not discharge their duties as required by Section 16 of the Acts in relation to alternative work

3: Respondents Submission.

3:1: The Respondent rejected the Complainant’s case on the following grounds

Ø The case was out of time

Ø Reasonable Accommodation would not have resulted in the Complainant being fully capable of performing her role

Ø The Complainant does not have a disability as defined under the Acts

Ø The Complainant has not identified a Comparator with whom she was treated less favourably

Ø The Complainant failed to establish any link between her alleged disability and the decision to terminate her employment.

Ø The decision to terminate her employment was based on her failure to engage with the Respondent in relation to her on-going absence from work.

Extensive written and oral evidence was provided in support of all these points.

4: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

4:1 Background and Preliminary Issues

To properly consider this case The Tribunal felt that four Background /Preliminary issues needed to be considered carefully before going to discuss the questions of Disability Discrimination and Reasonable Accommodation. The four issues are

a. Character and Procedures of the Respondent

b. Necessary Communications

c. Time Limits

d. Disability / Definition /Valid Grounds

(a) Character and Procedures of the Respondent

The Tribunal found that the Respondent was a well-run professional organisation with good procedures and well documented practices. Staff displayed professional competence. Considerable latitude was allowed by the Respondent to the Complainant at all stages, particularly in relation to extra paid Sick Leave and additional time to engage in all employment procedures. Respondent evidence given at the Oral hearing was credible.

(b) Necessary Communications

A critical theme running through the detailed evidence, both written and oral, of the parties and particularly the Respondent, was of a failure by the Complainant to engage pro-actively in any employment proceedings or requests for clarification/further evidence particularly on the medical issues.

A critical example would be the Consultant (Mr.C) Medical report obtained in February 2012. Despite numerous requests to the Complainant and her legal advisor, detailed in evidence by the Respondent, no comment was ever received by the Respondent in relation to the opinion expressed by the Consultant.

A report from an alternative Consultant (Ms.E) was promised but never materialised.

The outcome was a Disciplinary Hearing on the 3rd October 2012 at which the Complainant did not attend. She was dismissed in absentia although all correct notification procedures were followed by the Respondent.

At the Oral Hearing it was stated in supporting evidence from a friend of the Complainant (Ms.F.O’B) that the Complainant was suffering from serious stress and psychiatric issues during late 2011 and 2012. It was alleged that her advice was that to engage in the Employment Processes of the Respondent would be majorly detrimental to her physiological health.

However this Medical/Psychiatric evidence was not presented to the Respondent and they were effectively in the dark in relation to these issues. The Complainant’s Legal Advisors, at that time, July 2012, were in correspondence with the Respondent in relation to the Mr.C report referred to above and no reference was made to any Psychiatric issues.

The major authority in these matters is the seminal Labour Court case Humphries v Westwood Fitness. [2004] ELR 296. 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.

In this case the Tribunal had to find that the Complainant frustrated the efforts of the Respondent to discharge the requirements of the Humphries/Westwood judgement.

(c) Time Limits

The Respondent pointed out that the Claim was out of time – the argument hinged on a date of notification of Termination of employment – October 9th 2012 - giving a six month deadline of the 8th April, 2013. The Complainant form was lodged on the 29th of May 2013. The Complainant felt that the actual physical ending of the employment on the 3rd December 2013 should be the relevant date.

Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -

“(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 occurrence of the discrimination or victimisation to which case relates or, as the case may be, the date of its most recent occurrence

(b)On application by a complainant the Director may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

In this case the date of “occurrence of the discrimination” is when the complainant was notified that she had been dismissed, October 9th 2013. This is outside the six months timeline but within twelve months. At the Oral hearing it was alleged that the delay was due to legitimate confusions and misunderstanding on the part of the Complainant.

I find that this delay amounts to “reasonable cause” in accordance with section 77 (5) (b) of the Employment Equality Acts and I extend the period to 12 months. I conclude that the respondent is not prejudiced by this extension.

Accordingly the Claim was allowed to proceed.

(d) Disability /Definition /Valid Grounds

The Respondent pointed to Medical Consultant Mr. C’s. Report referred to above to question whether or not Ms.K had an actual long term disability. He stated (01.02/2012) in relation to surgery in the Hand Clinic in St.Vincent’s Hospital.

“I have listed her for decompression of her first dorsal interosseous compartment which I feel very confident will resolve her issues quickly.”

This medical view was never contested by the Complainant (for reasons as discussed above).

The question of a temporal time frame /Long Term/Short Term requirements in Disability cases is a matter of considerable dispute among Authorities. However as a main plank of the Respondents case was that the Complaint was not physically capable of fully returning to work the Tribunal took the view that the temporal argument, while interesting, was not really relevant in this case.

4:2: Questions of Disability Discrimination /Disability Dismissal /Reasonable Accommodation

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.

Unlike other grounds like race or gender, in some circumstances, disability can be a causative factor in terminating a person’s employment. 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 s(he) 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.

(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.

4.3 Both the Complainant and the Respondent have cited the seminal Labour Court case Humphries v Westwood Fitness. [2004] ELR 296. The relevant paragraphs in relation to required inquiries and consideration of reasonable accommodation were quoted above in Section 4.2 (a)

The Medical evidence pointed to a disability and the full return to work of the Complainant was in question from an early stage. However to infer that the decision to terminate her employment was discrimination in relation to her disability is a considerable hurdle.

The Respondent quoted the case of Southern Health Board v Mitchell (2001 ELR 201) where the Labour Court offered guidance, setting out a three part test in these cases.

These are

Ø Proof of the Primary Facts, on the balance of probabilities, being relied upon to raise a presumption of unlawful discrimination.

Ø Facts must be of sufficient significance to support the presumption of discrimination.

Ø If the burden of proof shifts to the employer they have to prove that the decision was not influenced by any of the proscribed ground sunder that Act.

4:4 Disability Dismissal

In using this test the Tribunal found that the facts were fairly clear cut. The Complaint was on Sick Leave for a considerable period – July 29th 2010 until final dismissal in December 2012. Considerable evidence of medical inquiries / consultants reports was presented. The facts were of sufficient significance. The real issue was the question of proof that the dismissal decision by the employer was influenced by these facts.

The Respondent maintained throughout that the Dismissal decision was

“due to her failure to actively engage with the employer in relation to her ongoing absence”.

In the opinion of the Tribunal the considerable evidence presented supported this view and there was not a sufficient proof to substantiate a prima facie case of discriminatory Dismissal.

4:5 Reasonable Accommodation:

Where Reasonable Accommodation and Discriminatory Dismissal issues arise the employer /Respondent has the defence of Section 16(1) of the Equality Acts to justify the dismissal of the employee – effectively stating that the employee’s disability was such as to render the continuation of the employment impossible or impractical. However this defence is reliant on a full consideration of the question of Reasonable Accommodation prior to the decision to dismiss.

The Tribunal looked at the position set out by the Labour Court in An Employer and A Worker. [2005] ELR 159. The Court found that the reasonable accommodation test is an objective one:

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.

In relation to the Reasonable Accommodation tests referred to in Humphries v Westwood Fitness. [2004] ELR 296 the Respondent in the Tribunal’s view acted in so far as possible to seek the best possible outcome for the Complainant.

The Tribunal also looked at the position set out by the Labour Court in An Employer and A Worker. [2005] ELR 159. The Court found that the reasonable accommodation test is an objective one:

In the case in question the Respondent is a relatively small Voluntary Organisation with limited employment opportunities. The question of the Complainant being afforded a purely Supervisory /Administrative role solely in the kitchen area was a practical and operational impossibility. The Tribunal was happy that the question of Reasonable Accommodation had been sufficiently considered. Evidence was presented of meetings and discussions that had considered the issue carefully.

The Labour Court have also stated in other relevant cases that 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. Again the Tribunal did not feel that this was operationally feasible in a small organisation.

Likewise offering Reduced Hours was not also really a viable option.

While cost was not an argument made by either party the small size of the Organisation and the major funding challenges of the business would have raised the valid issue of whether or not an accommodation would have placed a disproportionate financial burden on the Respondent.

4:6 Accordingly the Tribunal found that the question of Reasonable Accommodation was considered to a sufficient degree and with sufficient seriousness to afford a sustainable defence, under Section 16(1) of the Acts, to the Respondent in terms of a case of alleged Discriminatory dismissal. The Tribunal was of the view that a defence under Section 16(1) was available to the Respondent.

4:7 Overall Conclusion

In overall conclusion the Tribunal could not but come to the view that the failure of the Complainant to realistically engage with the procedures and inquiries of the Respondent was the critical issue in the case. The Complainant, for example, did not avail of any Internal Appeal mechanism in relation to her dismissal.

5: DECISION

This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.

I have investigated the above complaints and make the following decisions in accordance

with Section 79 of the Acts that:

Ø The Complainant has not succeeded in establishing a claim of discrimination on Disability Grounds culminating in a Discriminatory Dismissal and the claim fails.

Ø The issue of exploring options to provide Reasonable Accommodation was considered to a sufficient degree as to provide a sustainable defence to the Respondent against the claim of Discriminatory Dismissal. This claim also fails.

__________________

Michael McEntee

Equality / Adjudication Officer

5th February 2016