ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001672

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 09/06/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant's trade union representative submitted that the complaint revolves round the Respondent's failure in its obligations under the Employment Equal Acts 1998 - 2008 to provide reasonable accommodation for the Complainant's disability. It was submitted on behalf of the Complainant that the Respondent has acted contrary to the requirements of Sections 8 and 16 of the Act and has therefore treated the Complainant in a discriminatory fashion.

Background:

It was submitted that the Complainant was diagnosed as suffering with epilepsy in 1997. His condition had been the subject of treatment and, as a result of the ongoing medication that he has been prescribed, he has not had an epileptic episode since 2001. However, notwithstanding the Complainant's extended period of episode free health, it was submitted that he meets the definition of an individual with a disability as detailed in Section 2 of the Employment Equality Acts 1998.

The Complainant commenced employment with the Respondent, in a safety critical role, in 2004 and continued in that role until January 2015, when he was certified as unfit for duty in respect of a health matter totally unrelated to his disability. During the engagement process with the Respondent's medical advisers in respect of the January 2015 illness, the Complainant advised that the Respondent's medical officer of his pre-existing epilepsy condition. Consequently, it is submitted on behalf of the Complainant that the Respondent was on notice of the Complainant's disability. It was submitted that the Respondent's refusal to allow the Complainant resume was due to his disability.

It was submitted that, in the intervening period the Complainant, his trade union and his local T. D. made several representations to the Respondent in relation to the Complainant being allowed to resume duties either in his substantive post or in an alternative role. It is submitted that these representations have not secured an agreement in relation to the Complainant's resumption of duties.

It is submitted that in December 2015 the Respondent's Chief Medical Officer declared the Complainant fit to resume restricted duties. It is further submitted on behalf of the Complainant that the Respondent has not acted on the Chief Medical Officer's recommendation and has continued to refuse the Complainant access to employment. It is submitted on the Complainant's behalf that this has had a significant, negative financial impact on him as his entitlements under the Respondent's sick pay scheme were exhausted by July 2015.

Arguments:

The Complainant's trade union representative submitted that as he (the Complainant) suffers with epilepsy, he has a disability. It is contended that the medical treatment and the prescribed medication that the Complainant takes control the symptoms of his disability to such a degree that he had not suffered an epileptic fit in 15 years. It is submitted on behalf of the Complainant that the Respondent has failed to provide reasonable accommodation as per requirements of Section 16 of the Employment Equality Act for that disability by either returning him to his post or to an alternative post within the company.

It is submitted on behalf of the Complainant that the Respondent is on record for facilitating other individuals with differing disabilities with alternative work. In support of this contention, the Hearing was presented with evidence which clearly suggests that an influencing factor, from the Respondent's perspective, is that the Complainant cannot be accommodated with alternative duties as they (the Respondent) have too many individuals working restricted duties due to medical conditions.

Details were submitted on behalf of the Complainant with regard to two comparators who were also suffering from similar disabilities. In one case an employee who was suffering from Parkinson's disease was accommodated with alternative duties. It was submitted that there is no justifiable reason why the Complainant should be treated differently from his colleagues particularly when the opportunity to do so was available to the Respondent.

In conclusion, it was contended, on behalf of the Complainant, that sufficient grounds and evidence, as required by Section 85 (a) of the 1998 Act, have been submitted to determine that there exists a presumption of discrimination upon which the burden of proof shifts to the Respondent. It was further argued on behalf of the Complainant that in the absence of the Respondent being able to rebut the inference, a decision should issue requiring the Respondent to remedy the discriminatory treatment afforded to the Complainant and to award him compensation of two years pay, which is the maximum level available under the Acts.

Respondent’s Submission and Presentation:

The Respondent stated that the claim concerns the circumstances of the Complainant's current absence on illness, since January 2015 and his fitness to work in a safety critical role. The Respondent contends that, as a result of his absence, the Complainant was requested to attend the Chief Medical Officer on 14 January 2015. It is submitted that the outcome of this consultation was that, due to an ongoing medical condition, the Complainant was medically unfit to continue in his safety critical role.

The Respondent submits that, as is normal in such circumstances, the Chief Medical Officer requested that alternative, non-safety critical work be made available to the Complainant. It is contended by the Respondent that they then began a trawl of all areas, within the organisation, in an effort to find a role that could accommodate the Complainant and the medical restrictions imposed by the Chief Medical Officer.

The Respondent submitted that a number of options were considered, all which turned out to be not feasible for a number of reasons. It is further submitted by the respondent that chief among these reasons was the fact that the medical restrictions placed on the Complainant meant he was not in a position to work alone, which is a requirement of many of the positions available to the Respondent for redeployment of the Complainant.

The Respondent also submitted that they explored whether or not the Complainant could operate in a lone role using a Lone Person Working Device. However, it was further submitted that the medical restrictions and the complications of the Complaint's condition meant that this was not possible.

The Respondent submitted that they were committed to dealing with such situations, as exist in the Complainant's case, as sympathetically and proactively as possible. In support of this, the Respondent stated that they had the Complainant assessed for clerical positions but, unfortunately, he did not reach the required standard for such assessment.

The Respondent contends that during various interactions with the Complainant during 2015, both he and his trade union representative made a number of threats and allegations, which the Respondent found to be wholly inappropriate and unhelpful in their efforts to try to resolve the Complainant's predicament.

The Respondent presented the Hearing with evidence from its Chief Medical Officer to the extent that there is a prohibition on working in a designated safety critical position for persons under treatment for epilepsy. It is further contended that each case is assessed on an individual basis taking into account the nature of the condition and its treatment as well as the nature of the safety critical position. According to the Respondent, the Chief Medical Officer sets the medical standards for fitness for employment in an industry which is guided by both national and European regulation. It is contended on behalf of the Respondent that the appropriate assessment process was implemented in the Complainant's case.

It was further submitted by the Respondent that under the pre-employment medical examination process, individuals are required to declare any existing medical conditions which may impact on them doing the job which they are being assessed for. It was stated by the Respondent that, although at that stage in 2004 the Complainant was suffering from epilepsy, he failed to declare the condition.

In conclusion the Respondent submitted that it had gone to great lengths to try and accommodate the Complainant and had treated him in a manner that is in accordance with the assistance that all employees would receive in such circumstances. The Respondent submits that their prime focus and responsibility in this and in all cases is to protect the safety, not only of their customers, but the individual employees as well.

Based on this the Respondent submits that they do not believe they have offended the Equality legislation and that the Complainant's complaint should be dismissed.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The Complainant’s claim is that the Respondent has failed in its obligations under the Employment Equality Act, 1998 – 2008 and in particular that the Respondent acted contrary to the requirements of Sections 8 and 16 of the Acts

Legislation involved and requirements of legislation:

The Employment Equality Act, 1998 – 2008 is the relevant legislation in this case.

Decision:

Having carefully considered all the evidence adduced, it is clear that a number of significant aspect in this case are not in dispute between the parties. First and foremost, there appears to be no disputing the fact that the Respondent is suffering from a disability. In addition, there is no evidence of dispute between the parties with regard to the fact that the Complainant's disability is consistent with the definition in that regard contained in Section 2 (1) of the Employment Equality Acts 1998 – 2008. I concur with the parties positions in this regard.

Secondly, there is no dispute between the parties that the Complainant's medical certification to resume work contains the restriction, as a result of a disability, that he cannot return to his former role or to any role which contains a safety critical or specific aspect or element.

Consequently, taking the above into consideration, it is clear that the matter before me for adjudication revolves around the issue of reasonable accommodation, which in this particular case relates to the Respondent accommodating the Complainant in a position consistent with the medical restrictions arising as a result of his disability.

In considering the issue of reasonable accommodation, I am significantly influenced by the judgement in a recent High Court case. (Nano Nagle School v Marie Daly [2015] IEHC 785) In that case the Court affirmed the decision of the Labour Court in the case of a Respondent who had failed to consider or evaluate potential options of reasonable accommodation. In the case, Noonan J focused on the employer's statutory duty of reasonable accommodation in circumstances where a previously able employee experienced a disability during the course of employment.

Section 16 of the Employment Equality Act 1998 – 2015 requires an employer to "do what is reasonable to accommodate the needs of a person who had a disability by providing special treatment or facilities". However, an employer is not required to retain an individual in a position that the individual is not "fully competent and available to undertake" the duties attached to that position. Therefore, the question for consideration (in the above case and in the particular case before me for adjudication) is to what lengths an employer must go to discharge their statutory duty in relation to reasonable accommodation.

In the above quoted case, the Respondent determined that could not accommodate the Complainant 's return to work on the basis that she was medically unfit to undertake the entirety of the duties associated with her role as an SNA. However, it would appear that the Respondent did not consider potential alternative options to reasonably accommodate the Complainant's return. The High Court determined that the Respondent's insistence that the Complainant perform all the duties attached to her previous role, which she could not now do in light of recent disability, was "erroneous". In particular, the judge found that: "where the school position correct, it would seem difficult to envisage any circumstances in which a person suffering from a disability could be reasonably accommodated". The judge further noted that the definition of "appropriate measures" includes the adaption of both patterns of work time and distribution of tasks.

It is clear to me, from the above decision, that an even greater responsibility is now being placed on employers to actively explore and consider any and all potential alternatives that may amount to "appropriate measures" so as to reasonably accommodate an employee with a disability.

Having carefully considered all the evidence adduced in the case before me for adjudication, I fail to be convinced that the Respondent has fully explored any and all possible or potential alternatives in order to accommodate the Complainant with an appropriate return to work situation. The Respondent submitted in evidence that they had looked at all potential alternatives. It was also submitted that the Respondent was restricted in its ability to accommodate the Complainant by the number of previous accommodations provided to other individuals with medical restrictions.

Based on the evidence presented, I am not convinced that the effort to explore potential alternatives was as thorough and comprehensive as one might expect in such circumstances. In particular, I find there to be a disconnect, or more accurately perhaps, a failure to engage in a direct and collaborative manner between the Human Resources Department and the Chief Medical Officer in what should be a combined effort to find an accommodation for the Complainant.

I appreciate the burden that may be placed on an employer in a scenario where they are experiencing a greater than normal occurrence of staff presenting with medical restrictions, which require redeployment to alternative duties. Nonetheless, I am of the view that it unreasonable to exclude the Complainant from the possibility of alternative duties solely on the basis that others have exhausted those possibilities by virtue of their personal situations.

I am also influenced in my assessment of the merits of this case by the size and diverse nature of the Respondent's business/operation. While I accept that it is not for external parties to interfere in the operations of an organisation, I believe it is reasonable to be somewhat sceptical of the thoroughness, in this case, of the Respondent's efforts to accommodate the Complainant in line with the restrictions placed on him by his disability.

It is clear from the evidence presented that an impasse has been reached in this case. The Respondent's position is that they have no alternative role/duties which would accommodate the Complainant's return to work and the matter appears to rest there as far as they are concerned. As a result of the Respondent's position, the Complainant remains out of work, in a scenario where he is off pay and, clearly, experiencing significant financial difficulties as a result.

I find it unacceptable and unreasonable that such a stalemate is allowed to continue, particularly in a scenario where the financial difficulties being experienced by the Complainant appeared to have serious and impending negative consequences for him and his family. I believe it to be unacceptable that the Respondent, on the basis that they contend they cannot accommodate a return to work for the Complainant, allow the matter to drift and do not appear to have engaged in meaningful discussions with the Complainant and/or his trade union in an effort to bring his unfortunate situation to some form of mutually agreeable resolution. I am strongly of the view that this situation needs to be rectified and/or brought to a definitive conclusion without further delay.

Finally, I note the Respondent's raising of alleged threats and allegations made by the Complainant and his trade union representative during the discussions which took place in an effort to resolve the matter. Having carefully considered the evidence presented in this particular regard, I am satisfied that the basis on which the Respondent raised these matters was somewhat unreliable and, as a result, I find raising them as part of the Respondent's representation in this case to be somewhat unreasonable and potentially misrepresenting the Complainant's bona fides in the matter.

In conclusion, taking all of the above and all the evidence adduced both written and oral, into consideration, I am satisfied that the Complainant is currently out of work because of his disability. I am also satisfied that, notwithstanding the obvious challenges being experienced by the Respondent in its efforts to accommodate the Complainant, the evidence suggests that the Respondent has not fully complied with the responsibilities placed on it by the Equality legislation to accommodate the Complainant in this case. I am also satisfied that the Respondent has allowed this matter to proceed to, and remain at, impasse, without applying the attention and/or focus necessary to bring about resolution or closure.

Therefore, I find in favour of the Complainant and, in line with Section 82 (1) (e) and (c) respectively, determine that:

(a) the Complainant should be returned to the Respondent's payroll with effect from the date of this determination for a period of six months. During this period and without prejudices to the positions/expectations of either party, the Respondent should engage in direct and meaningful discussion with the Complainant and his trade union representatives in an effort to arrive at a reasonable, sustainable and definitive resolution of the matter by the conclusion of this period. The effect of the resolution should be to ensure that the current stalemate which exists in the Complainant's working relationship with the Respondent does not continue after the six month period.

and

(b) the Complainant should receive an amount of €15,000, in compensation for the effects of the act of discrimination.

That concludes my investigation.

Dated:   22^nd July 2016