DEC-E2016-021

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-021

PARTIES

An Employee

(Represented by Amanda Kane, Mandate Trade Union)

AND

A Multi-National Retailer

(Represented by Peter Flood, IBEC)

File Reference: EE/2013/256

Date of Issue: 28th January 2016

1. DISPUTE

1.1 This dispute concerns a claim by the Complainant that she was discriminated against by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), owing to the Respondent’s failure to provide her with reasonable accommodation contrary to Section 16(3) of the Acts.

1.2 Through her Trade Union, Mandate, the Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 28th May 2013. On 20th May 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 12th June 2015. Both Parties were represented and in attendance. A former HR Manager, Ms W gave evidence on behalf of the Respondent. All written and oral evidence and submissions presented to the Tribunal including documentation submitted before and during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the statutory provisions and case law relating to disability discrimination.

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

2. SUMMARY OF THE COMPLAINANT'S POSITION

2.1 Most of the facts pertaining to this complaint are not in dispute between the Parties and it is the level of the Respondent’s onus under the Acts in the particular circumstances that is in dispute. In examining same, it is necessary to set out the sequence of background events and correspondence in some detail.

2.2 The Complainant commenced employment with the Respondent in 2006 as a Sales Advisor in one of its regional Food Stores working 37.5 hours per week, and in October 2008 she was reissued with a contract of employment for a Sales Advisor when she transferred to a nearby branch in a ticketing role. It was a term of her contract that the Respondent reserved the right to move her to work in any area of the Store. In the course of her employment in both Stores, she had worked in every area/function required within the role of a Sales Advisor including in the Bakery on occasion. Although there was no written variation in relation to her contract, from October 2010, she was permanently transferred to the Bakery. When she questioned this move with her Shop Steward, she was told that it was the Respondent’s plan to move employees around. She signed a permanent contract change in respect of her roster effective from 20th November 2011 confirming a 36.5 hour week. At all material times, she was employed as a Sales Advisor and there was no express written term or condition of her employment requiring her to work in a defined area/function. The Complainant was regarded as an excellent employee and she scored highly during her appraisals and received performance related pay increments throughout her employment.

2.3 The Complainant’s employment was uneventful until 2011 when she developed problems with her back necessitating attendance at an Orthopaedic Clinic. At this time, an MRI scan showed Spondylitis in her lower back and severe Dermatitis and a Report from the Complainant’s GP dated 30th March 2011 linked aggravation of these issues to her working in the Bakery, and noted that these issues were known to the Respondent when she moved to the existing branch, having been accommodated in the previous Store. Specifically, the Report stated: “A new manager moved her back to the Bakery approximately six months ago. Since returning to the Bakery her back condition has deteriorated and her hands have flared up again. I have given her intra muscular medication today and have sent further tests today. I have prescribed oral medication but I feel that working in the Bakery is not in the best interests of her health at present.” The Complainant contends that the Respondent ignored this Report and continued to roster her to work in the Bakery. She confirmed that it was much warmer within the Bakery area than other areas of the Store owing to proximity to the ovens. It is common case that the Complainant made complaints regarding her back problems and lifting to various staff including the HR Manager, Ms W in her existing Store but the level of prior knowledge relating to accommodation being afforded to her in the previous branch was in dispute. During a meeting with Ms W in or around April 2011 regarding work procedures, the Complainant contends that Ms W questioned why she had changed GP and also asked: “Do you want to work in here?” which she took as a threat. From April 2011, the Complainant began to experience unusual visual changes and in December 2011 and April-May 2012, she suffered from episodes of temporary eye-sight loss in her right eye and was off work on sick leave for periods of one to three weeks. On 2nd May 2012, she was admitted to hospital and diagnosed with Optic Neuritis with a secondary diagnosis of Multiple Sclerosis which was definitely confirmed in October 2012. Before this diagnosis, her main issues were back pain and Dermatitis but there is no medical confirmation that these earlier complaints related to the Multiple Sclerosis. The Complainant remained off work on certified sick leave from May 2012 and never returned as the basis of her return to work could not be agreed upon after she was certified as fit to return to work on light duties in a different area of the Store, by her GP on 29th April 2013, and she was made redundant on 12th September 2013.

2.4 By letter dated 29th of June 2012, HR Manager Mr B wrote to the Complainant requesting a meeting on 6th July 2012 in relation to her rehabilitation back to work, and also sought consent to a medical report from a specialist through the company occupational health service. The Complainant submits that at all material times, she kept HR fully appraised of her health status including submitting sick certificates for the period in question and a handwritten letter dated 2nd July 2012 as produced to the Tribunal, confirming that she was undergoing tests including a test on 18th July 2012 and was currently unfit for work and unable to attend a meeting. By letter dated 5th July 2012, Mr B asked the Complainant to contact him following a consultation with her GP to arrange a meeting to discuss the current situation.

2.5 During the following six month period, the Complainant was undergoing tests to confirm her diagnosis and confirmed that at all material times, she had kept the Respondent fully appraised of her health status. Between the time of the secondary and definitive diagnosis by letter dated 17th July 2012, the Complainant’s GP wrote to the Respondent outlining the serious nature of her diagnosis and provided information on its implications including the role stress plays in affecting Multiple Sclerosis. The attached information made reference to the need to avoid fatigue, stress, temperature extremes and illness. In particular the GP stated: “I would appreciate any support you can offer this lady as she values her employment and now finds herself with a new health condition that she must come to terms with.”

2.6 Then in a tersely worded letter of 7th January 2013, Mr B wrote to the Complainant asserting that she had failed to contact him to arrange a meeting after seeing her GP back in July 2012 and asked her to contact him by 4pm on 14th January 2013 “…to arrange a meeting to review your situation and to discuss your rehabilitation back to work if you can provide me with a date when you can return to work. I would also advise you that failure to do this will leave me with no option but to assume you are not returning to [the Respondent].” The Complainant was upset by the tone of the letter and especially at the suggestion that she may not be returning to work. She contacted Mr B by telephone/text and confirmed that she was still too unwell to attend for a return to work meeting after just being hospitalised following a third relapse.

2.7 On 13th February 2013, Mr B submitted a ‘Medmark Work Assessment Application’ to Medmark for the purposes of having the Complainant assessed. Under ‘Reason for Assessment:’, it stated: “[The Complainant] is a sales advisor in our…Store in [Location B]. She joined the company on 30 1 2006 originally in [Location A] and then transferred to [Location B]. [The Complainant] works in the Bakery.” Under the heading: ‘Issues to be addressed:’, it stated: “[The Complainant] is out of work since last year for loss of eye sight claiming due to work stress and is now saying she has MS.” It is contended that this phraseology is at best unfortunate in circumstances where the Complainant was legitimately certified on sick leave. On the same date, Mr B wrote to the Complainant admonishing her for asking him to contact her GP directly and requesting her to attend for an Occupational Health Assessment with the Respondent’s (Medmark) doctor, along with details of the arrangements.

2.8 Further to attending for the Occupational Health Assessment on 20th February 2013, the Medmark doctor produced a Report dated 23rd February 2013, making no direct reference to the diagnosis of Multiple Sclerosis but referring instead to ‘an underlying health condition’ and some of the Complainant’s symptoms, treatment and medication. The Complainant contends that it misrepresented and downplayed the symptoms and difficulties she reported (particularly that her condition was exacerbated by heat if working in the Bakery and stress) and misreported her capabilities (including that she was now dressmaking and driving) to conclude: “Despite the significance of her condition, currently her symptoms appear to be well controlled and that she is able to function normally in her activities of daily living.” Under the heading ‘FITNESS FOR WORK – WORK RESTRICTIONS/MODIFICATIONS’, the Report stated: “In my considered opinion, based on [the Complainant’s] assessment today, I feel that [her] health condition is stable and that she would be in a position to return to work shortly. Following discussions with her own doctor and specialist which she said would take place in the next week or two, I find no reason why she could not go back to work. Although there is a theoretical risk that someone with her condition may have an exacerbation of their symptoms when exposed to a warm situation, fortunately [she] has not complained of such symptoms. With regards to your specific query, I am unable to comment fully that work stressors would cause or exacerbate her underlying condition. Nevertheless, in my opinion it is unlikely that the work stresses in particular, would cause a significant deterioration of her condition. I have made no further plans to review her, but would be happy to do so if any further issue arises.” The Complainant submits that this Report also ignores the fact that her GP had already stated that working in the Bakery exacerbated her symptoms and requested that she be moved out of this area. The Complainant confirmed that this is the subject of a complaint to the Medical Council but further to an objection from the Respondent, it was felt unnecessary to consider documentation and information arising from this complaints process as my main concern is with how the Respondent conducted itself in relation to the available information at the material time.

2.9 The Complainant was extremely concerned at the contents of the aforesaid Report first furnished to her on 22nd April 2013 and the Respondent’s apparent entrenchment and insistence that she return to work in the Bakery in response to same. Her Union Representative, Ms K, wrote to the Respondent on 24th April 2013 taking issue with the contents and findings as outlined above, and questioned whether Medmark had been asked to identify what support measures would be required to assist her return to work given that working in the Bakery was unsuitable and exacerbates the symptoms of her Multiple Sclerosis. Ms K also requested that all measures are taken to ensure that the Complainant was relocated to another area in the Store that would not affect her condition in accordance with its Attendance Management Policy. This letter was ignored. Ms W, who had taken over from Mr B, had sent a letter dated 26th March 2013 to the Complainant requesting that she attend a meeting on 12th April 2013 to discuss her employment situation, but that meeting was cancelled by the Respondent without giving any reason.

2.10 By certificate dated 29th April 2013, the Complainant’s GP certified her as fit to return on light duties and stated: “I would support her application to transfer to another area as she will find it difficult to stand for 8 hours and work in heat given her diagnosis. It is also important to note that the hospital speciality neurology team have advised against stressful situations as it may exacerbate her symptoms.” Upon receipt of the certificate, Ms W contacted the Complainant and advised that she would have to return to work in the Bakery as there was no other job for her. This was a source of great concern to her and a meeting was convened between Ms W, the Complainant and Ms K on 2nd May 2013 to discuss the situation. At the meeting, Ms W stated to the Complainant that unless she was 100% fit to do all duties she could not return, stating: “If the disability means that you are not capable of doing the job then you do not come back here”. It was further stated and indeed repeated in the Respondent’s evidence that if disability means that the Complainant is not capable of doing her job then she could not return to work. The meeting ended in an impasse between the Parties as reflected in subsequent correspondence. Ms K emailed Ms W later on the same date requesting confirmation of what supports could be put in place for the Complainant’s return to work with the exception of the Bakery. Ms W responded by email dated 3rd May 2013 stating: “As explained at our meeting yesterday, [the Complainant] can return to work if she has been certified as fully fit to perform her current role. If you instruct [the Complainant] to return to work on Saturday 4th May ’13 without this certification, we will have no option but to send her home. Trust this clarifies.” On 2nd May 2013, Ms K also wrote to Ms W referring back to the meeting and setting out the Complainant’s position regarding her certification as being fit to return for work on light duties, the fact that medical advisors have confirmed that her condition may be exacerbated by heat so she cannot work in the Bakery, and pointing out that she was fit to carry out the vast majority of the duties required as a Sales Advisor, her contracted position. It also referred again to the comments made by Ms W at the meeting and the Respondent’s entrenched position regarding its refusal to accept the Complainant back to work unless she was 100% fit for all duties, pointing out that it was acting in breach of the Employment Equality legislation and threatening to submit a claim on the disability ground.

2.11 By letter dated 13th May 2013, Ms W responded to Ms K confirming the Respondent’s position as: “As I explained to you and [the Complainant] at the meeting the Company cannot allow [the Complainant] to return to work unless she is fit to resume all duties. We have a duty of care to all our staff to ensure that they are medically fit to do the job they have been employed to do. You stated at the meeting that you would get a certificate to state that [the Complainant] was fit to return to work but could not work in the Bakery. [The Complainant] is employed as a sales advisor who works in the Bakery so therefore if she cannot work in the Bakery she is then not fit to return to her contracted position.” The Complainant points out that the Respondent is incorrect in this respect, and although containing a flexibility clause, her most recent written contract as a Sales Advisor did not specify that she had to work in the Bakery and she has previously undertaken ticketing duties on the same contract. Likewise, in her absence other Sales Advisors on similar contracts including flexibility clauses were moved to the Bakery. In her letter, Ms W refers to the conflict between the Parties’ positions as follows: “The Company Medical Doctor has confirmed that [the Complainant] is fit to resume work with no restrictions yet [the Complainant’s] GP has stated that she cannot work in the Bakery.” There was no proposal to obtain a further and/or independent expert medical opinion in light of this perceived conflict.

2.12 This complaint alleging discrimination on the grounds of disability owing to the Respondent’s failure to afford the Complainant reasonable accommodation was then submitted on 28th May 2013.

2.13 By letter dated 28th June 2013 some six weeks later, Ms W wrote to the Complainant referring to the meeting of 2nd May 2013 setting out a slightly different position: “I would reiterate that you are employed as a sales advisor and as such you are obliged to work in all areas of the Store, therefore if you could not work in the Bakery department, you are not fit to return to your contracted position. However, in an attempt to facilitate your request and having reviewed the staffing model with the Store Manager, Ms G I can confirm that for operational needs the Company are now in a position to offer you the following contract. I would also confirm that the Company reserves the right to ask you in exceptional circumstances to work in the Bakery department should the need arise.” The proposed schedule indicated a 36.5 hour week in accordance with the Complainant’s existing contracted hours but added up to a 32.5 hour week and included later start and finish times without any consultation with the Complainant or Ms K. In direct evidence, the Complainant confirmed that with her condition, her energy levels were much better in the mornings and so she required the same start and finish times.

2.14 Ms K responded on behalf of the Complainant by letter dated 15th July 2013 pointing out these issues and seeking clarification as to why her return to work could not simply be accommodated within its staffing model and operational needs and within her contracted hours in accordance with the Employment Equality legislation. Ms W responded by email confirming that the proposed contract was for 32.5 hours and the reference to 36.5 hours was a typographical error. She confirmed that the change of start/finish times was owing to the fact that the Company was offering the Complainant a “different contract” as the contract she is currently on is for “a sales advisor working in the Bakery” which she has stated she cannot return to owing to her illness. For the same reason, Ms W said that she could not return to work on her contracted hours of work as “they are in line with the operation of the Bakery”. In relation to why the staffing model and operational needs of the Respondent could not accommodate the Complainant, Ms W further confirmed that they were in place to allow for a certain number of staff at each hour of the day, when each member of staff would have certain duties at that time. The Complainant’s contracted hours were for the purposes of facilitating the operation of the Bakery, and “as she cannot work in the Bakery, the Company are trying to make reasonable adjustment by offering [the Complainant] a different contract whereby she will not have to work in the Bakery except in exceptional circumstances.” The Complainant questions the bone fides of the offer to facilitate her return to work after so many meetings, correspondence and months of ignoring requests for accommodation. She contends that the apparent ‘changes to the staffing model’ were never explained. She submits that the Respondent is incorrect in its repeated assertions that her contract as a Sales Advisor required her to work in the Bakery and if she could not undertake such duties, she could not undertake her contract.

2.15 On behalf of the Complainant, it is submitted that the Respondent knew at this juncture that the Store was closing and its shift in position was to “create a smoke screen” to prevent/dilute this claim. The Store closure was communicated to the Complainant by letter dated 7th August 2013 and she was made redundant on 12th September 2013. A collective redundancy package was agreed between the Union and the Respondent. The Respondent initially sought to have this claim compromised within the redundancy package but after a further exchange of heated correspondence with the Union, agreed to pay the Complainant’s redundancy without requiring withdrawal of this claim. However, as a result she was not paid her redundancy when she went to collect it and payment was delayed by approximately a month. Ms K sought to have the Tribunal consider a victimisation claim but accepted that these events including the shift in the Respondent’s position post-dated the submission of this complaint. It also appears that such threatened legal action was not proceeded with on behalf of the Complainant at the time, once the Respondent agreed to pay the redundancy without compromising this claim.

2.16 In summary, it is submitted that the Complainant has a disability within the meaning of the Acts and was discriminated against on the grounds of disability in relation to the Respondent’s continued insistence that she work in the Bakery notwithstanding her GP’s advice to the contrary. The Complainant simply asked to work in another area of the Store other than the Bakery at no extra cost or burden to the Respondent. However the Respondent failed to afford her reasonable accommodation within the meaning of Section 16(3)(b)(ii) as explained in A Worker -v- An Employer EDA0413 by adopting the entrenched position that she could not return to work unless she was fully fit for all duties including work in the Bakery despite being fit to do most of the other duties required in her contracted position as a Sales Advisor. It is submitted that this duty is proactive in nature as confirmed by the Labour Court in A Worker -v- A Hotel EDA0721. The eleventh hour offer of a different contract (with reduced hours and reserving the right to ask her to work in the Bakery) was a cynical ploy made in the knowledge of the impending redundancy. The Complainant relies upon the cases of King -v- Great Britain China Centre [1992] I.C.R. 516 and Citibank -v- Massinde Ntoko EED0456 in relation to the applicable legal test for assessing the factual matrix giving rise to the discrimination alleged.

3. SUMMARY OF THE RESPONDENT’S POSITION

3.1 As outlined above, there was very little disagreement between the Parties in relation to the factual background, and although the definitive diagnosis of the Complainant’s Multiple Sclerosis was not made until October 2012, the Respondent accepts that she has a disability within the meaning of the Acts from thereon. However, the Respondent rejects all allegations of discriminatory treatment on the grounds of disability and failure to provide reasonable accommodation to the Complainant. It points out that the Respondent is an equal opportunities employer and is committed to equality of opportunity in all its employment practices, policies and procedures in accordance with its code of business conduct.

3.2 The Respondent is an international retail chain with a large number of Stores in Ireland, but from in or around June 2013 had to close a number of its Stores here including the Store where the Complainant was employed owing to economic circumstances. The Respondent operated two types of Stores, a standard Retail Store and a Food Store which was much smaller than the standard Retail Store, stocking only a small range of food produce. The Complainant was employed in one of the regional Food Stores. There is no issue that her employment ceased on the grounds of redundancy on 12th September 2013.

3.3 The Parties are in agreement as to the nature of the Complainant’s work as a Sales Advisor, the main dispute relating to the level of flexibility that should have been afforded to the Complainant following certification of her fitness to return to work. The Respondent submitted in written submissions: “As part of this role flexibility was required to work in all areas and sections of the Store and the company reserved the right to move her accordingly, subject to Store requirements.” It was also repeatedly asserted in evidence that once the Complainant had been assigned to the Bakery, that formed her contracted position. It was pointed out that the Food Store wherein the Complainant was employed was small in size with a limited capacity and functions which made it difficult to accommodate her within any other role. The Respondent accepts that the Complainant was an exemplary employee.

3.4 The Respondent accepts that it received the Report from the Complainant’s GP dated 30th March 2011 confirming Spondylitis and Dermatitis, although it takes issue with the extent that the Complainant’s back problems were linked to the Bakery. It makes the point, notably for the first time in submissions, that due to its small size, regardless of where a Sales Advisor was assigned duties within the Store, they would be affected by heat from the Bakery ovens. It is also denied that the Respondent had been aware of the Complainant’s back issues and had previously accommodated the Complainant before March 2011. During direct evidence, the HR Manager Ms W confirmed that the Complainant had brought to her attention back issues owing to lifting goods which should have been undertaken by other staff and this had been addressed. At that time and despite the Respondent’s best efforts at that stage, due to the size and staffing levels in the Store in question, it was not possible to facilitate the Complainant’s move away from the Bakery and other mechanisms were put in place such as plastic gloves, etc.

3.5 For approximately a year thereafter, the Respondent received no further complaint or medical evidence from the Complainant in relation to her back issues and Dermatitis arising from her work in the Bakery and assumed that the measures put in place sufficiently addressed any issues. It is common case that since from in or around May 2012, the Complainant became ill and went on certified sick leave with the diagnosis at that stage being Optic Neuritis. It contends that the absence management policy was implemented as per company policy guidelines and applied in a fair and equitable manner. The Respondent contends that this policy is non-discriminatory and is applied across the organisation. The policy requires that all employees are declared fully fit to perform all aspects of their role prior to their return in order to safeguard employee welfare and ensure a successful return to the workplace. In accordance with this policy, the Respondent required the Complainant to be fully fit to return to work.

3.6 According to the Respondent, it was willing to welcome the Complainant back to work at all times in accordance with its absenteeism policy but engagement with the Complainant proved very difficult. It refers to the exchange of correspondence for that period as outlined above as demonstrating a serious lack of communication on her part, making it difficult to engage and facilitate her return to work. In particular, the Respondent disputes the assertion made on behalf of the Complainant that: “No action was taken by the company until January 2013.” It was because the Respondent had not heard from the Complainant since July 2012 that she was informed that they would be forced to assume that she no longer wished to remain in employment if nothing was received by this date.

3.7 In its written submission, the Respondent accepts that the wording used in the referral form as quoted in Paragraph 2.6 above was “…perhaps inadequate but in no way intended to undermine a medical opinion. However, as it was completed by an administrator and not a medical expert, it could not be stated definitively on the referral form that [the Complainant] had MS. Admittedly, more appropriate wording could have been used but this is no reflection on the company’s view of the claimant’s illness or diagnosis.” The Respondent took its Occupational Health Assessment Report at face value notwithstanding the concerns raised as to its adequacy on behalf of the Complainant and submitted: “As a result of the Occupational Health assessment declaring the claimant fully fit to return to all aspects of her role on 27 February 2013, by its very nature the provision of reasonable accommodation was null and void. It was not necessary to put in place any special adjustments for the claimant by virtue of her being fully fit to return to work and to her employment when no additional provisions had been advised or deemed necessary by the medical professional who conducted her assessment. The respondent therefore endeavoured to act within the remit of the report and facilitate the claimant’s return to the Store.” The Respondent refuted the Complainant’s assertion that the Medmark doctor had ignored her GP’s letter of 30th of March 2011 regarding her ability to work in the Bakery stating that it is “…entirely independent of other opinions and based on the medical condition of the employee on that day.” It also refers to this assessment as “...sacrosanct and as such the occupational health specialist declared [the Complainant] fully fit to engage in her role.” The Respondent also contends that this earlier GP’s letter referred to different and unrelated health issues (Spondylitis and Dermatitis) and no link between the two has ever been made. It submits that its Report should take precedence over the conflicting opinion of the Complainant’s GP dated 29th April 2013, as an occupational health specialist has a greater knowledge of the employee’s role within the company and their ability to perform that role.

3.8 There is no issue between the Parties as to what occurred at the meeting of 2nd May 2013 and subsequent correspondence between the HR Manager Ms W, the Complainant and her Union Representative, Ms K. The Respondent’s position was that unless the Complainant was fully fit to resume all duties, then it was bound to preclude her from returning to work for health and safety reasons as per company policy.

3.9 The Respondent submitted that in June 2013, in an ongoing effort to facilitate the Complainant’s return to work, a review of the Store model was conducted by the Respondent and a position was found to accommodate her in another section of the Store and she would only be expected to work in the Bakery in exceptional circumstances. As far as the Respondent is concerned these were the actions of a very reasonable and accommodating employer notwithstanding the contents of the Occupational Health Assessment Report. However, when questioned, Ms W stated that such a position had in fact been available for some time prior but she had not been made aware of same. She also said that she accepted that heat caused the Complainant difficulties but was guided by the Report. When asked whether she had considered alternative arrangements including re-rostering or training other Sales Advisors to work in the Bakery, she confirmed that this had not been fully considered as an alternative as it would disrupt the rosters of other staff specialised in their areas and/or there were not enough trained Sales Advisors to cover the Bakery. She speculated that the cost of training another Sales Advisor to work in the Bakery would be in the region of €5,000. She said that the later hours were to accommodate the requirements of the role in question and the starting time in the Bakery was earlier than the rest of the Store to allow for the preparation of produce. Notwithstanding her email of 15th July 2013 confirming that that the new contract was for 32.5 hours, in direct evidence, she confirmed that this was another typographical error and that in fact it was for a 36.5 hour week in line with the Complainant’s prior position.

3.10 The Respondent denies that management were aware of the impending closing of the Store until August 2013. It also denies discriminating against the Complainant by requesting her to withdraw this claim and to sign the waiver in full and final settlement of any employment claims in order to receive the agreed redundancy package, as all its employees were required to sign the same waiver. In response to the possible admission of a victimisation claim arising from same, it was submitted to be out of time.

3.11 Overall, the Respondent submits that the Complainant has not established a prima facie case of discrimination on the grounds of disability or a failure to provide reasonable accommodation contrary to the Acts and has therefore failed to discharge the requisite burden of proof. In this respect and based on the aforesaid, the Respondent relies on a number of well-known authorities in relation to the applicable test for the burden of proof including Southern Health Board -v- Mitchell DEE011, Graham Anthony & Company Limited -v- Margetts EDA038, Melbury Developments Ltd -v- Valpeters EDA0917 and EME Ltd t/a SPAR Clarehall -v- Dickson Ugwunnayan EDA1218. The Respondent also submitted that the Complainant has not identified an appropriate comparator. At the hearing, it was further argued that the Respondent was entitled to avail of the Section 16(1) defence if the Complainant was incapable of working in the Bakery as this could clearly not be facilitated with any accommodation.

4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER

4.1 The issues for decision are whether or not the Respondent discriminated against the Complainant on grounds of disability in terms of Section 6(2)(g) of the Employment Equality Acts and failed to provide her with reasonable accommodation in terms of Section 16(3) of the Acts.

4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. As elucidated in the aforesaid case law, it requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised. When investigating a complaint, the role of the Tribunal includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings of fact.

4.3 I propose to examine this complaint both in relation to the period from 2011-2012 when the Complainant’s main issues were Spondylitis and Dermatitis and from May 2012 until her redundancy on 12th September 2013, when she was diagnosed with Optic Neurosis with a secondary diagnosis of Multiple Sclerosis. It is accepted by both Parties that the Complainant has a disability within the meaning of Section 2 of the Acts at all times relevant to this complaint, and I concur with that view.

4.4 Section 16(1)(b) of the Acts provides that an employer is not obliged to retain an employee in a position if s/he is not fully competent and capable of undertaking the duties attached to that role. However, this is then subject to 16(3)(a) of the Acts which provides that an employee with a disability is to be considered fully competent and capable to perform his/her duties if they can be undertaken with the provision of ‘appropriate measures’, more commonly referred to as ‘reasonable accommodation’. This is subject to the proviso that such measures would not impose a disproportionate burden on the employer. In practical terms, Section 16 of the Acts as interpreted in the seminal case of A Health and Fitness Club -v- A Worker EED037 upheld by the Circuit Court (Humphreys v Westwood Fitness Club [2004] E.L.R 296), requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake their duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision.” The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel EDA0721 as: “[T]he duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.” In An Employer -v- A Worker EDA0413, the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.”

4.5 This complaint is primarily concerned with the failure by the Respondent to provide reasonable accommodation to the Complainant to facilitate her return to work after her diagnosis with Multiple Sclerosis when she was certified as fit to return to work by her GP on 29th April 2013 on light duties in a different area. Having considered all of the documentation, evidence and submissions presented, overall, I find that the Respondent has fundamentally misinterpreted and misconceived its obligations under Section 16 of the Acts which dictated the manner in which it met the Complainant’s requests for reasonable accommodation. Essentially, it was the Respondent’s position that the Complainant was fit to return to work in the Bakery based upon its Occupational Health Assessment and if it was her position that she could not undertake every aspect of her job, then she could not return to work. This position is evidenced by Ms W’s repeated assertions throughout the process and in evidence and most notably her letter dated 13th May 2013 and reiterated in her letter of 28th June 2013 stating that:“[The Complainant] is employed as a Sales Advisor who works in the Bakery so therefore if she cannot work in the Bakery she is then not fit to return to her contracted position.” At the hearing, it was also argued on behalf of the Respondent that it was entitled to avail of the Section 16(1) defence under the Acts on this basis.

4.6 In reality, the Complainant was employed as a Sales Advisor which entailed a wide range of functions with work in the Bakery being just one of those. Her contract was also subject to a flexibility clause allowing for her to be moved around. It appears that she had been moved from a ticketing role to working in the Bakery from October 2010. There was no term in her contract or variation restricting her employment to the Bakery. The Respondent is therefore mistaken in its proposition that if the Complainant could not work in the Bakery that she was incapable of undertaking her contracted role and that it had to offer her a new contract based upon a position that had become available. Other Sales Advisors had covered for the Complainant in the Bakery during her absence and Ms W accepted in evidence that staff could have been trained up to replace her in the Bakery. Even allowing for the small size of the Store, there was quite a degree of latitude to move staff around and alleviate the Complainant from working in the Bakery. As outlined above, reasonable accommodation can also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. At no stage was there any meaningful engagement with the Complainant or her Union Representative in relation to her request for reasonable accommodation. There was no consideration of alternative arrangements including re-rostering or training other Sales Advisors to work in the Bakery. No evidence was proffered to confirm that it would cost €5,000 to train another Sales Advisor to work in the Bakery and even it was that much, I would not consider that a disproportionate burden for the Respondent. If followed through to its logical conclusion, the Respondent’s interpretation of Section 16 would render the legislation nugatory. Nor is the Respondent’s contention that the Complainant should identify a comparator relevant to the assessment of reasonable accommodation.

4.7 In particular, I find that the Respondent failed to properly undertake the first stage of the enquiry to establish the Complainant’s capacity to undertake her role as a Sales Advisor based on the following:

· Aside from the inappropriate wording which appears to have been accepted by the Respondent, the information contained in the ‘Medmark Work Assessment Application’ submitted by Mr B on 13th February 2013 for the purposes of having the Complainant assessed was wholly inadequate in terms of outlining the reasons for assessment and issues to be addressed. Aside from any other objections the Complainant may have to the resulting Occupational Health Assessment Report, I am satisfied that the shortcomings in the referral form influenced the Report and its general lack of clarity regarding the effects of heat and continued work in the Bakery would have on the Complainant. I am also astonished that the Report did not make explicit reference to the diagnosis of Multiple Sclerosis.

· I further find that the Respondent failed to properly address the conflict between its Occupational Health Assessment Report and the Complainant’s GP who certified her fit to return to work on light duties in a different area and its submission that its Assessment was ‘sacrosanct’ and took precedence over the later opinion of the GP most unhelpful. At that stage, it would have been reasonable to expect the Respondent to have referred the Complainant back to its Specialist for a further assessment as he had stated: “I have made no further plans to review her, but would be happy to do so if any further issue arises.”,or alternatively agreed to an assessment by an independent Specialist.

· I do not accept the Respondent’s contention that the Complainant failed to engage, properly communicate or otherwise cooperate with the process and I accept her evidence that she reverted in relation to any requests to make contact. She submitted the relevant certification in respect of her sick leave and also fully cooperated in relation to the Respondent’s request to undergo a medical assessment and attended for examination on the first scheduled date. Given the nature of her very serious diagnosis, it is perfectly understandable as to why she was not fit enough to attend a meeting to discuss her return to work before being certified as fit on 29th April 2013. In this respect, the Respondent also postponed a back to work meeting at short notice and provided no explanation for the delay of two months in communicating its Assessment Report to the Complainant.

· I also reject the contention that the heat from the Bakery ovens would have extended to the rest of the Store so the Complainant could not have been accommodated anywhere within the Store, particularly as there was no evidence proffered supporting this proposition and it was first raised at the hearing.

4.8 Without an adequate enquiry in relation to the Complainant’s capacity to undertake her functions, the Respondent could not then proceed to properly undertake the second stage of the enquiry and consider what, if any, measures could be taken so that she could return to work in her capacity as a Sales Advisor. Even if the Respondent had accepted the Complainant’s position that she was unable to work in the Bakery owing to the effects of heat on her condition, I find that its efforts to accommodate her with a so-called new contract following the lodging of this complaint were unreasonable on the following basis:

· The roster for the proposed new contract was drawn up without consultation with the Complainant and therefore did not factor in the impact of the later starting/finishing times on her illness and undisputed evidence that she has more energy during the mornings. She was also denied any input in relation to the provision that she would be required to work in the Bakery exceptionally.

· The reduction in hours would have led to a commensurate reduction in the Complainant’s pay. I do not accept Ms W’s evidence that the new contracted hours were for 36.5 hours in line with the Complainant’s existing contract and that the reference to 32.5 hours was a typographical error, in circumstances where the newly proposed roster added up to 32.5 hours and Ms W had clarified in writing that the reference to 36.5 hours was a typographical error and it was a 32.5 hour contract.

· Given the repeated refusal to consider any accommodation before this complaint was submitted, I am of the view that this was a half-hearted attempt to meet the claim in advance of any hearing.

4.9 Based on the aforementioned, I find that the Complainant has made out a prima facie case that the Respondent discriminated against her on grounds of disability in terms of Section 6(2)(g) of the Employment Equality Acts and failed to provide her with reasonable accommodation to enable her to return to work in terms of Section 16 of the Acts from the date of her GP’s certification on 29th April 2013 until her redundancy on 12th September 2013 and the Respondent has failed to rebut same.

4.10 For the sake of completeness in relation to the earlier period of 2011-12 when the Complainant’s main health issues were Spondylitis and Dermatitis and the Respondent required her to continue working in the Bakery contrary to her GP’s advice, I am not satisfied that she has made out a prima facie case that the Respondent failed to provide her with reasonable accommodation during this period. This finding is based on the fact that there was no established link between the earlier and latter health issues and also the fact that she continued to work in the Bakery without pursuing her grievance formally during that period. However, even at this stage, the Respondent’s treatment of the Complainant fell far short of the standard of care to its employees that one would expect from any employer and was indicative of its later treatment of her following her diagnosis with Optic Neurosis and Multiple Sclerosis. Overall, I find the Respondent’s intransigent attitude and lack of empathy to a valued employee diagnosed with a serious condition, as evidenced in all communications from HR staff, to be wholly reprehensible.

4.11 Finally, in circumstances where a threatened action was not proceeded with on behalf of the Complainant once the Respondent agreed to pay the redundancy due to her without compromising this claim, I do not propose making any finding in this respect. I also accept the Respondent’s submission that any claim for victimisation would be well out of time at this juncture.

5. DECISION

5.1 I have concluded my investigation of the complaint herein and based on the aforementioned, I find that pursuant to Section 79(6) of the Act, the Respondent discriminated against the Complainant on grounds of disability in terms of Section 6(2)(g) of the Employment Equality Acts and failed to provide her with reasonable accommodation to enable her to return to work in terms of Section 16 of the Acts.

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

(a) Within 42 days of the date herein, pay the Complainant €30,000 in compensation for breaches of the Employment Equality Acts. The Complainant clearly suffered considerable upset, anxiety and distress in relation to the manner in which the Respondent responded to her diagnosis and handled her request for reasonable accommodation to enable her to return to work. This award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate” and equates to approximately one year’s pay. As this redress is for the infringement of the Complainant’s statutory rights, it is therefore not subject to income tax.

(b) I further order, as per Section 82(1)(e) of the Acts, that the Respondent conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with the Employment Equality Acts with particular reference to the disability ground.

5.3 Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.

____________________

Aideen Collard

Equality Officer

28th January 2016