DEC-E2016-083

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-083

PARTIES

A Former Employee

-AND-

A Government Department (Represented by Cathy Maguire BL, instructed by the Chief State Solicitor’s Office)

Date of Issue: 30th May 2016  

1.  DISPUTE

1.1 This dispute concerns three interrelated complaints under the Employment Equality Acts (hereinafter also referred to as ‘the Acts’) by the Complainant and hence are being investigated together as follows: (1) As a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts; (2) The Complainant was subjected to adverse treatment amounting to victimisation contrary to Section 74(2) of the Acts arising from the making of this and previous complaints under the Acts and; (3) The Complainant was discriminated against by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) and Section 8 of the Acts in relation to conditions of employment and training.

1.2 The Complainant referred the aforesaid complaints under the Acts to the Director of the Equality Tribunal and they were received on 8th April 2014, 15th April 2014 and 11th July 2014 respectively.  On 8th October 2015, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission 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 General 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 a preliminary hearing on 23rd October 2015 and conducted a substantive hearing on 1st and 2nd December 2015. 

1.3 The Complainant confirmed that although she previously had representation she was happy to represent herself, and the Respondent was represented by the Chief State Solicitor’s Office and Counsel.  A number of witnesses gave evidence on behalf of the Respondent.  All written and oral evidence and submissions presented to the Tribunal including documentation submitted during the hearing have been taken into consideration when coming to this decision.  I also indicated that I would be relying upon relevant statutory provisions and case law relating to disability discrimination.  Given the sensitivities of these complaints, I confirmed that I would be exercising my discretion to anonymise this decision.

1.4 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.  PRELIMINARY ISSUE

2.1 Unfortunately, there is a long and troubled history to these claims.  In support of the complaints herein, the Complainant submitted a statement detailing acts of alleged discrimination, victimisation and failure to provide reasonable accommodation from 2007 until her date of early retirement on the grounds of ill-health on 28th February 2015.  Counsel for the Respondent submitted that the complaints herein were vexatious and res judicata (already decided) as the Complainant had already litigated these matters in four previous complaints submitted to the Equality Tribunal in 2009-2010 and which referred to a series of allegations between the end of July 2007 and end of February 2010.  After a full day of hearing on 21st June 2012 before the then Director of the Equality Tribunal, those matters were adjourned for a further three day hearing on 6th, 7th & 8th November 2012.  By letter dated 22nd October 2012 to the Tribunal, the Complainant’s Union on her behalf withdrew these complaints confirming that she had been given a new role which was working out very well for her and that: “She is most anxious to regard her new assignment in the Department as representing a fresh start for her and an opportunity to put behind the considerable difficulties she has had in recent years.  Having regard to all of these issues, (the Complainant) has advised me that she no longer wishes to pursue her complaints any further.”  Counsel for the Respondent submitted that it would be unduly onerous for the Respondent to have to revisit these previous complaints at this juncture.  I was also informed that the Complainant had a claim of constructive dismissal received by the WRC on 18th August 2015 and yet to be heard by the EAT.  The Complainant accepted that the previous complaints had been withdrawn voluntarily and as far as she was concerned, matters had resolved at that stage.  It is common-case that all was relatively well in terms of the Complainant not raising any further discriminatory issues including reasonable accommodation for approximately a year but these re-emerged when she returned to an office-based role.

2.2 In relation to the applicable time limits, Section 77(5)(a) of the Acts provides: “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 the case relates or, as the case may be, the date of its most recent occurrence”, extendable to 12 months for reasonable cause under Section 77(5)(b).  Section 77(6A) deals with the different forms of continuing discrimination or victimisation under the Acts.  Essentially, where the complaint of discrimination or victimisation refers to a series of separate acts or omissions sufficiently connected so as to constitute a continuum as asserted in the instant case, there must be such acts or omissions that fall within the requisite time limit in order for acts or omissions outside the time limit to be taken into account. (County Cork VEC -v- Hurley EDA1124)

2.3 Having considered this issue carefully, I am satisfied that the prior complaints were resolved between the Parties as at 22nd October 2012.  However, the fact that matters had resolved previously does not necessarily mean that they could not be repeated and re-emerge giving rise to further causes of action.  I therefore indicated that I would hear evidence of any allegations arising from 23rd October 2012 up until the date of the last complaint received on 11th July 2014, on the basis set out in County Cork VEC -v- Hurley EDA1124.  Any evidence heard outside of this time period was heard strictly for the purposes of putting the current complaints in context.  For the avoidance of doubt, I have not made any findings in relation to the Complainant’s early retirement on the grounds of ill-health or related application process.

3.  SUMMARY OF THE COMPLAINANT’S EVIDENCE AND POSITION

3.1 The Complainant confirmed that she was employed in various higher level administrative and technical roles within the Civil Service since 1981.  She suffered from a disability within the meaning of Section 2 of the Acts.  She was diagnosed with Photosensitive Epilepsy in July 2007 and also suffers from severe classical Migraine and Depression in respect of which she has been hospitalised, has had to take periods of sick leave and requires medication.  She described how the side effects of these conditions including light, noise and smell sensitivity impacted on her work.  She acknowledged that these side effects may have contributed to interpersonal difficulties with colleagues.  She explained that when she was in the office environment in buildings which were primarily constructed with large glass windows, she was unable to deal with the bright light and glare caused by light reflecting off the glass.  Artificial light also aggravated her conditions especially overhead lighting.  As a result of these conditions, she required specific lighting requirements and adjustments to her workstation to ensure these issues are controlled.  On occasion, she also has to wear special glasses to manage when lighting is too bright.  Prior to her diagnosis, she contends that she had been progressing well in her career and had received an Award.

3.2 Turning to the time period in relation to the complaints herein, the Complainant explained that when she had an outdoor role from the end of October 2012 until January 2014, she had control of her working environment and was less affected by natural light.  She also rarely required use of her desk space.  However, as a result of other difficulties arising from this role, she had to return to an office-based role in the same modern glass constructed building where she had worked previously to a similar open plan office on a different floor.  The building is facing due south.  The blinds throughout are metal, white venetian blinds.  The sun shines directly into the building at all times with secondary reflection rebounding from the surrounding glass wings.  The office is lit throughout by strip lighting overhead.  All the stairwells are south facing and have ceiling to floor glass without any shielding blinds.  The Complainant’s main issues during the relevant period included the glare from the window beside her desk, unsuitability of overhead lighting, the lighting/seating arrangements when she attended meetings in her Manager’s Office and the rest-room not being appropriately set-up.  She explained that a rest-room was provided as somewhere staff could go to rest if they are feeling unwell or managing a disability.

3.3 Further to her return to the office setting, by email dated 3rd February 2014, the Complainant contacted the Disability Liaison Officer, Ms D, with a view to discussing “the small accommodation I will need as regards lighting”.  In response, Ms D asked her to confirm the address of her new office and name of her Manager, to complete a ‘Workplace Accommodation Form’ with respect to her new office and to give her permission to contact her Manager and the Facilities Management Unit (hereinafter ‘FMU’) about any workplace accommodation needed.  Ms D confirmed that once she received the completed Form, she would arrange a meeting with her and the concerned parties.  The Complainant emailed Ms D back on 4th February 2014 stating that she had never seen this Form before and confirming her position as reiterated in her evidence, that as all the relevant Departments had all the necessary information, she did not feel that this was necessary and also cited her concerns regarding privacy.  In particular she stated: “I wasn’t anticipating yet another big formal re-inventing of the wheel and all the ensuing trauma.  I simply hoped that a liaison officer would just assist me in communicating the importance of caution lighting with photosensitive epilepsy.”  Ms D replied by email dated 10th February 2014 stating that she was sorry that she felt this way and asked her to confirm that her current details of Manager and location on ‘My Site’ were accurate so that she could liaise with the correct team in the FMU stating: “I will await your reply and then will organise a visit to your new office.” The Complainant emailed the following in reply to Ms D the same day: “I understand that you needed my permission to liaise, and just to be clear, I would not like things arranged or discussed without my consent.  I’ve had this condition made know to HR for more than 7 years now.  I didn’t ask for Facilities management teams to be involved.  I don’t think the DLO resource/approach will be of any use in my particular case.  Please do not approach others on my behalf.”  She explained that she had not completed this Form despite further requests as it entailed the trouble and expense of obtaining a medical report and a Report from 2009 had previously been furnished to the FMU, detailing the necessary adaptations to her workplace and she simply wanted the same again. 3.4 During the material period, the Complainant contended that no adaptations were made to her work environment.  Upon returning from sick-leave on 7th April 2014, she discovered that the rest-room for her floor had been decommissioned.  On foot of this incident and a general feeling that despite exhaustive discussions between herself, the CMO, Trade Union, her Neurologist, Brainwave, Brainstorm and her employer, she was not afforded reasonable accommodation in the workplace, she submitted the complaint regarding the Respondent’s failure to provide her with reasonable accommodation received by the Equality Tribunal on 8th April 2014.  The rest-room was replaced with another rest-room on another floor which was unsuitable and required access via the glass stairwell.  Although the original rest-room was subsequently reinstated, it did not sufficiently meet her requirements.  Further to raising a query about previous disciplinary action leaving her in a state of limbo, she received a letter dated 17th April 2014 from HR confirming that an ongoing disciplinary process had discontinued owing to lapse of time.  However she felt that matters were still left hanging over her as adverse findings against her had not been set aside.  On foot of this, she submitted her compliant of victimisation, received by the Equality Tribunal on 15th April 2014.  In general, the Complainant felt she was unable to do anything in the workplace such as asking a colleague to adjust a blind without being accused of bullying.  She felt that various meetings with her Line Manager and Divisional Manager were also disciplinary in nature.

3.5 In May 2014, there was an exchange of correspondence between the Complainant and the Chief Medical Officer (hereinafter ‘CMO’) regarding her difficulties in obtaining reasonable accommodation in the workplace despite previous reports and recommendations from her Consultant Neurologist.  She also made a complaint to the Health and Safety Authority on 19th May 2014 regarding her workplace situation.  On 26th May 2014, a standard assessment was undertaken on her workstation by an outside contractor.  She felt that its recommendations had not been properly adhered to by the Respondent.  In particular, it recommended discussion with her medical team around managing and reducing her risk factors in the workplace which she felt had not been done.  Additionally she interpreted the report as finding that lighting levels were found to be above the recommended lux (measurement of light) levels.  She contacted the FMU on foot of same asking what the next stage was.  Despite the FMU commissioning a light study to test the lux levels (measurement of lighting), she was unable to identify her optimum luminance levels as it had requested.  In a letter dated 11th June 2014 to her Line Manager, the Complainant’s Consultant Neurologist stated: “The level of luminance in the room is definitely leading to an increase in migraines.  I feel that if appropriate changes could be made to her work environment this would obviate the need for further medication changes.”  The Complainant submitted emails confirming that when she asked her Consultant to confirm the optimum luminance levels as requested, he replied that it was whatever she was comfortable with and he could not assist further.  This left an impasse and the only thing she could control was her overhead light which she got disconnected. 

3.6 The Complainant outlined the basis for her claim of discrimination on the grounds of disability in relation to her conditions of employment and training received by the Equality Tribunal on 11th July 2014.  She confirmed that whilst there were many examples of less favourable treatment owing to her disability going back years, the main issues that fall within the time period subject to this investigation related to receiving a poor annual review owing to her inability to attend for training due to the unsuitability of the accommodation where the training was being conducted and ongoing disciplinary issues.  Specifically on 23rd May 2014, there had been an incident with her Line Manager, when she was disciplined as a result of not sitting down during a meeting even though she had repeatedly said that the particular seat was facing an unprotected window facing due south and having full sunshine. 

3.7 The Complainant contended that her Line Manager had circulated a letter dated 30th June 2014 behind her back stating that it was not possible to accommodate her in the workplace.  An expert in dispute resolution who was also representing her in these matters at the time had also sought to mediate and had written to the Head of the FMU, Mr F, seeking to address her various difficulties.  This was to no avail as the Respondent had objected to her representative’s involvement in the process.  She had had further interactions with her Line Manager around reasonable accommodation in November 2014 but again to no avail as this did not comprise of a formal assessment.  She also objected to an email he had circulated regarding same to other parties.  She had a meeting with the HR Manager in October 2014 regarding her situation accompanied by her representative.  She was forced to take a further period of sick-leave and thereafter an internal process led to her early retirement on grounds of ill-health on 28th February 2015.

3.8 The Respondent’s position was put to the Complainant.  It was put to her that previous disciplinary action had been delayed by her previous complaints to the Equality Tribunal and were discontinued owing to the lapse of time after she withdrew those complaints on 21st October 2012.  She had cited a number of other reasons for not attending required training and had not sufficiently flagged any difficulties in advance of same.  It was put to her that at least one of the buildings in Dublin where she had missed training was suitable and adjustments had been made to the lighting when flagged to the Respondent.  It was put to her that it was her refusal to avail of required training that had led to her unsatisfactory annual review.  The Complainant also said that she had arranged her own training with a senior colleague which was in her view sufficient.  She accepted that the reason why she had been asked to complete a Workplace Accommodation Form may have been because she had returned to work in an office with a different layout.  It was also put to her that she had seen this Form previously as she had similarly refused to complete same when asked by Ms D in 2012.  She accepted that she had not completed the Form at that time for similar reasons.  She also stated that she had experienced resistance to external parties assessing her workplace.  It was also put to her that when she had made the Respondent aware of the issue with the rest-room in April 2014, it was restored within a week and she accepted that she had thanked her Line Manager for same.  She disagreed that the workplace assessment conducted had addressed her particular difficulties and that the Respondent had complied with same.  The Complainant accepted that she did not pass on information regarding her required lighting levels in a timely manner when requested but this was as she was due to meet the CMO and it was not possible to identify same.  It was further put to her that in November 2014, her Line Manager had met with her to understand her needs but she was unhappy with an email he had circulated on foot of same.  She did not accept the Respondent’s contention that her difficulties in the workplace predated her disability diagnosis and she was never happy despite exhaustive efforts to accommodate her particular needs in the workplace.  She accepted that she had previously been provided with her own office where lighting could be controlled but this was not a satisfactory solution either as she had felt isolated.

3.9 The Complainant submits that despite exhaustive discussions, she was not afforded reasonable accommodation in order to address her various difficulties in the workplace.  Overall, she feels that her various Managers over the years never took her disability seriously and never consulted her properly in relation to her specific accommodation needs.  She had been forced to take various periods of sick leave off work.  She also complained that her disability had a negative effect on her training and conditions of employment.  She had received a poor annual review because she had not attended training even though she had previously indicated that it was held in unsuitable buildings.  She had also been subject to disciplinary action over the years and in particular, arising from issues around her disability.  She felt that adverse disciplinary findings previously made against her had been allowed to hang over her because the process had never been concluded following her withdrawal of the previous complaints.  She submitted that this amounted to victimisation as a result of raising issues around her disability and seeking reasonable accommodation pursuant to the Acts.  The Complainant believes that disclosing her disability to the Respondent destroyed her chances of promotion and effectively put an end to her career as well as causing considerable stress to her and her family.  She confirmed that at the time of leaving her employment she was on a salary of €53, 500 and was seeking monetary compensation as a remedy. 

4.  SUMMARY OF THE RESPONDENT’S EVIDENCE AND POSITION

4.1 The Respondent accepts that the Complainant has a disability within the meaning of the Acts.  However, the Respondent rejects all the Complainant’s allegations of discriminatory treatment on the grounds of disability and failure to provide reasonable accommodation along with her claim of victimisation.

4.2 It is the Respondent’s position that owing to difficulties arising in the Complainant’s outdoor role taken up after the withdrawal of her previous claims in October 2012, she returned to an office position in or around January 2014.  Further to a history of difficulties around accommodating the Complainant’s disability, she had raised no issues during this period.  Disciplinary action against the Complainant which had been suspended pending the previous complaints was discontinued owing to the lapse of time.  However, unfortunately, the prior difficulties re-emerged when she returned to the office based setting. 

4.3 The Complainant’s Area Manager, Ms A, gave evidence confirming the new location of her workstation upon her return to work in January 2014 and of the various attempts by the Respondent to accommodate her needs arising from her disability over the years including disabling her overhead light, placing greenery in the open plan office and providing special lighting in an interview room she used.  She confirmed that training assigned to employees was a compulsory requirement to enable them to properly discharge their duties with the requisite competence, expertise and skills, particularly as the work involved the interpretation of ever-changing legislation.  When the Complainant had indicated a difficulty with the accommodation in relation to training in April 2014, she had directed her to the Staff Development Unit and was unaware of any further issues.  It subsequently came to her attention that she had not contacted that Unit and had cited personal reasons for not attending the training.  When this had affected her annual review, she was unhappy and further to modifying the review, the Complainant was invited to a meeting which she declined and therefore it was finalised with her Line Manager.  The Complainant put it to Ms A that she had been pressurised to agree to a final draft annual review and was under threat of further disciplinary action for not doing so but Ms A was unaware of such an issue.

4.4 The Complainant’s last Line Manager, Mr L, gave evidence confirming that when the Complainant had returned to the office environment in January 2014, she had initially sat at the desk of an employee on long-term sick-leave as it had been identified as the best location for her within the open plan office.  She had moved as the other employee was returning to work and he had organised the workplace assessment for that employee and the Complainant to take account of their particular needs in the workplace.  He also confirmed that the rest-room had been stocked up with new linen at her request and upon becoming aware of an issue with another Department using the room for storage, he had immediately reinstated the room and personally attended to all of the Complainant’s requirements.  He confirmed that she had thanked him and told him that she had really appreciated his efforts.  On numerous occasions he had consulted with the Complainant as to her accommodation needs and had tried to accommodate her in any way possible including sitting parallel during meetings.  Subsequent to undertaking the workplace assessment and the lighting studies, she was still unhappy with her workplace arrangements.  Mr L described how on 18th November 2014 he had personally gone and sat at her desk and asked her to talk through her issues and how they could be addressed.  In particular, he identified that the provision of a black-out blind would assist the Complainant and feeling somewhat of a breakthrough on foot of that meeting which he believed was positive, he emailed the other persons concerned making a number of suggestions including installation of a blackout blind.  However, the Complainant circulated a reply taking offence to this proposed action which did not progress as a result.  He also outlined the stress caused by interpersonal difficulties with the Complainant and detailed a number of incidents whereby she had been disrespectful and had challenged his authority.  In relation to the incident of 23rd May 2014 when she had refused to sit down during a meeting, she had not mentioned lighting as an issue.  The Complainant put it to Mr L that he never fully understood her disability and needs in the workplace and had never really sought to address them with her.  He refuted this and stated that he had consulted with her frequently and had read up on her disability but she had never properly identified her difficulties. 

4.5 The Disability Liaison Officer, Ms D, gave evidence outlining her interactions with the Complainant around her requests for accommodation in relation to her disability.  Her first contact in her new role was in 2012 when the Complainant had rung her with accommodation issues.  However when she had furnished the Complainant with a Workplace Accommodation Form, she had refused to complete same.  Neither had she furnished her with the necessary medical reports or recommendations regarding her accommodation requirements from a previous plan drawn up in 2009.  This information could not be obtained directly from the CMO as it was private and confidential.  Likewise when the Complainant had returned to the office setting in January 2014 and requested accommodation issues to be addressed, she had again refused to complete the Form as furnished or give her consent to contact the necessary Departments for the purposes of arranging for any accommodations.  It was not easy to contact the Complainant by telephone and she had also declined a meeting which had been arranged with Ms D to discuss her needs.  She confirmed that she had previously arranged for lighting to be adjusted and liaised with the Complainant’s Line Manager and the FMU in relation to the restoration and restocking of the rest-room as requested.  She also had various interactions with the Complainant in late November 2014 including requesting again that she complete the Form.  She refuted the Complainant’s suggestion that given the large number of staff who required her assistance, she had not always had the time to deal with her particular issues, confirming that she had always reverted quickly and dealt with any issues properly.

4.6 The Head of the FMU, Mr F, gave evidence confirming the functions of his Department which includes overseeing the maintenance of the Respondent’s buildings and dealing with requests for reasonable accommodation.  He had dealt with previous issues pertaining to the Complainant’s requests for accommodation and had read up on her disability needs including a document entitled ‘Employment and Epilepsy - An Employer’s Information Resource’ from Epilepsy Ireland.  In light of exhaustive efforts by his colleagues to resolve the issues around her accommodation on her return to the office setting, in or around mid- 2014, he had taken over responsibility for dealing with same.  He outlined his various interactions with the Complainant and commissioning of the lighting study on foot of the Workplace Assessment at considerable trouble and expense.  A specialist had attended at the office during both the daytime and the nighttime to measure the lux levels and determine the luminosity or brightness of the lighting.  As the lighting levels change continually throughout the day, this exercise was of limited assistance in identifying optimum levels.  He wrote to the Complainant on a number of occasions including a letter dated 31st July 2014 requesting more information about her needs both in terms of addressing her health and safety concerns and arising from her disability.  He was of the view that she should have completed a Workplace Accommodation Form which he had also requested for the purposes of identifying her needs as a starting point and before proposed engagement with the external dispute resolution expert who was representing her interests.  He also sought confirmation of her optimum luminance levels based on her Consultant Neurologist’s advice that this was her main difficulty but she objected based on the costs of a report involved and contended that the information already provided was sufficient.  Feeling that this was going nowhere, Mr F reiterated his requests in an email dated 24th October 2014 and set a deadline for the Complainant to revert in relation to providing the requisite information.  When she emailed him back by return stating that she did not intend reading his letter and she was going to do as previously stated (i.e. to pursue these complaints), he reverted stating that he would take that as bringing the matter to a conclusion.  He copied his email to the other persons involved in relation to her requests for accommodation for the purposes of informing them of the position.

4.7 The Complainant’s former Line Manager and Divisional Manager during the period in question gave evidence confirming that he had had a formal meeting on 19th June 2014 with the Complainant to discuss completion of her review, issues with her current Line Manager who was on stress-related sick leave, and her capability and future role.  He confirmed that although she had been invited to have a Union Representative and colleague attend as a witness, this was not a disciplinary meeting and its purpose was to hear her side of things.  He had written a confidential note on 30th June 2014 to HR and his Superior about the future of the Complainant’s role and capability in light of what he viewed to be a repeat of previous issues, ongoing interpersonal difficulties and impossibility of meeting her multiple and ever-changing accommodation requirements.  This was later referred to the CMO and appears to have set in train the process leading to her early retirement and beyond the remit of this investigation.  He wholly refuted that this meeting and email amounted to victimisation in circumstances where he was acting properly in response to issues raised by Mr L and in the interests of the health and safety of all concerned.  He refuted the Complainant’s assertion that he had not been concerned about her welfare.  In relation to the issues around reasonable accommodation in the workplace, he confirmed that even when the Complainant had been offered an office on her own in the past, she had been unhappy.

4.8 Overall, the Respondent submits that the Complainant has not established a prima facie case of a failure to provide reasonable accommodation, of victimisation or of discrimination on the grounds of disability in relation to her conditions of employment and training contrary to the Acts and she has therefore failed to discharge the requisite burden of proof.  In particular and based on the aforesaid, Counsel submitted that an objective test of what a reasonable employer should do in the material circumstances applied and relied upon the Labour Court decision of A School -v- A Worker EDA1430.  In this respect, the Respondent had acted reasonably but all efforts to provide accommodation including reinstatement of the rest-room and undertaking a workplace assessment had been rejected by the Complainant at every turn leaving it in an impossible situation.  The Complainant had refused to engage and cooperate with the process and in particular refused to complete the Workplace Accommodation Form and give her consent to contact other Departments for the purposes of adhering to any request for accommodation. 

5.  FINDINGS AND CONCLUSIONS

5.1 It is accepted by both Parties that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to these complaints and I concur with that view.  In chronological order of date of submission of her complaints, the issues for decision are (1) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts, (2) whether she was subjected to adverse treatment amounting to victimisation contrary to Section 74(2) of the Acts arising from the making of this and previous complaints under the Acts and (3) whether she was discriminated against by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) and Section 8 of the Acts in relation to her conditions of employment and particularly training.

5.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination.  As well established by the Equality Tribunal and Labour Court, this 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. 

5.3 Having heard all the evidence in this matter over a number of days and having read through a copious volume of documentation, it is clear that there is a complex and difficult history between the Parties that extends far beyond the parameters of this investigation and indeed my remit.  For my part, I found the Complainant to be eminently polite in the manner in which she presented her own case and she was clearly very disappointed at the untimely manner in which her lengthy career in the Civil Service had ended.  I therefore only propose addressing the evidence material and relevant to the complaints herein. 

5.4 Turning to the first complaint of a failure by the Respondent to provide the Complainant with reasonable accommodation in the workplace, the legal position in summary is as follows:  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, 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.  However, intrinsic to this bilateral process is the employee’s duty to engage and cooperate with the employer.  As observed by Walsh (2012) in relation to the caselaw on the equivalent duty under the Equal Status Acts: “Where a service provider seeks medical evidence or other certification and the service recipient chooses not to comply with that request it may relieve the service provider of their duty to reasonably accommodate.” (Equal Status Acts 2000-2011 - Discrimination in the Provision of Goods and Services - Paragraph 6.4.4.3, Page 225)

5.5 In this respect, there was very little in issue between the Parties in terms of the factual background but there was a huge chasm in terms of what each side felt was reasonable in the circumstances.  On the one hand, the Complainant felt that the Respondent had fallen far short of what was required to accommodate her needs.  On the other hand, the Respondent felt that she had not engaged and cooperated in terms of identifying her needs and its best efforts based on the information to hand was never enough.  I have carefully considered and weighed up the evidence from both Parties.  After a day of hearing the Complainant’s evidence, it was still unclear as to what precisely the Respondent should have done in terms of assessing her needs and accommodating them.  As against this, numerous witnesses for the Respondent gave evidence of the measures taken to assess and accommodate her needs for the period in question and in particular, following her return to the office setting in January 2014.  This included the reinstatement of the restroom, the undertaking of the Workplace Assessment and adherence to its recommendations including commissioning the lighting studies to establish the requisite levels of luminance along with various efforts by her Line Manager and the Head of the FMU to address her requests for accommodation.  In particular, I am satisfied that the rest-room had been sufficiently reinstated and accept that she thanked her line Manager for same.  I also note that an office of her own where she could control the lighting as suggested by the dispute resolution expert and Consultant was not a feasible option for the Complainant as she had previously felt isolated when allocated a separate office.

5.6 I might have been more understanding of the Complainant’s reasons for refusing to complete the Workplace Accommodation Form upon her return to the office setting had she previously furnished a completed Workplace Accommodation Form.  However I note that she had refused when requested previously.  Whilst I can understand her frustrations at the trouble and expense of providing medical information, a more cooperative approach might have enabled the Respondent to find solutions to these issues.  I find the Complainant’s refusal to complete the Form and expect the Respondent to rely on information furnished some years previously unreasonable, particularly as the Complainant had been unhappy in respect of previous efforts to accommodate her needs.  Also she was now in a different office setting on a different floor and there was every possibility that her needs could have changed since any previous assessments.  In circumstances where only the Complainant’s Consultant Neurologist had the requisite knowledge regarding her disability and related needs, I am satisfied that it was appropriate for the FMU to seek his recommendation regarding appropriate lighting levels.  I also note that the Complainant had regular contact with the CMO who was well aware of her disability and needs.  Likewise, I find that withholding her consent to the necessary Departments being contacted was unreasonable in circumstances where she was seeking accommodation.  I also find the Complainant’s responses to Mr L and Mr F’s efforts to identify her accommodation needs unreasonable.  Overall, I am satisfied that the Respondent did all that was reasonable to accommodate the Complainant’s needs in the workplace and if there were any shortcomings in relation to the accommodation provided, this was due to her reluctance to properly engage with the Respondent’s attempts to assess her accommodation needs. 

5.7 In relation to the second complaint of victimisation arising from the making of the aforesaid complaint and previous complaints under the Acts, Section 74(2) of the Acts provides: “For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to: (a) a complaint of discrimination made by the employee to the employer,…”  A complaint relating to disability discrimination made to an employer could constitute “a complaint of discrimination” within the meaning of this Section.  In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows: “(1)  The Complainant had taken an action of a type referred to at Section 74(2) of the Acts; (2)  The Complainant was subjected to adverse treatment by the Respondent, and; (3)  The adverse treatment was in reaction to the protected action having been taken by the Complainant.” Whilst I am satisfied that the Complainant meets the first component of that test having pursued a number of complaints of disability related discrimination and harassment against the Respondent under the Acts, I am not satisfied that she has been subjected to any adverse treatment during the material period.  I have considered all of the evidence in terms of any treatment that could be considered adverse and the Complainant’s evidence in this regard related to disciplinary issues and a less than satisfactory annual review.  In this respect, I note that the Complainant was not subjected to any formal disciplinary action during the period in question.  Specifically, I am satisfied that meetings called by her Managers were in line with their duties and obligations and that her unsatisfactory review arose from issues unconnected with her disability including her refusal to attend training on other grounds.

5.8 Finally, I cannot find any evidence supporting the Complainant’s third complaint of discrimination on the grounds of disability by the Respondent in relation to her conditions of employment and particularly training.  This complaint primarily related to her contention that the training centres she was expected to attend were unsuitable in terms of her lighting requirements.  In this respect, I am satisfied that firstly, when any such issues were properly raised with the Respondent, they were addressed and secondly, the Complainant accepted that there were other unrelated reasons as to why she did not attend the training.  Overall, I am unable to find any evidence of discrimination in relation to her conditions of employment.

6.  DECISION 6.1 I have concluded my investigation of the complaints herein and based on the aforementioned, I make the following findings pursuant to Section 79(6) of the Employment Equality Acts:

(1) The Complainant has not made out a prima facie case that as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide her with reasonable accommodation contrary to Section 16(3) of the Acts and therefore this complaint is not upheld;

(2) The Complainant has not made out a prima facie case that she was subjected to adverse treatment amounting to victimisation contrary to Section 74(2) of the Acts arising from the making of this and previous complaints under the Acts and therefore this complaint is not upheld;

(3) The Complainant has not made out a prima facie case of discrimination by the Respondent in relation to her employment on the grounds of disability contrary to Sections 6(2)(g) and Section 8 of the Acts in relation to training and conditions of employment and therefore this complaint is not upheld.

____________________

Aideen Collard

Adjudication / Equality Officer

30th May 2016