DEC-E2016-088

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-088

PARTIES

An employee

(Represented by IMPACT)

AND

A Health Services employer

File reference: et -151983-ee-14

Date of issue: 16th June 2016

HEADNOTES: Employment Equality Acts Sections 6, 16, Discrimination on Disability grounds and Failure to provide Reasonable Accommodation.

1: Background

This dispute concerns a claim by Ms RK, the Complainant, that she was Discriminated against on the grounds of Disability and by failure to provide Reasonable Accommodation by a Health Services Employer, contrary to the Employment Equality Acts.

The Complainant referred a claim to the Director of the Equality Tribunal on the 9th January 2015, under the Employment Equality Acts. On the 5th April 2016, in accordance with his powers under section 75 of the Employment Equality Acts, the Director General of the Workplace Relations Commission, delegated the case to me, Michael McEntee, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to a hearing on the 19th April 2015.

2: Complainant’s Submission

2:1 The Complainant was a Grade V Administrative employee of the Respondent, having been initially employed in 1987. She has a physical disability that restricts her mobility.

In June 2011 she expressed an interest in an Assessment of Need Officer (ANO) position - a Grade VII post. She had successfully applied for the national competition for this role and was on the panel but due to the Public Service moratorium was not initially offered a permanent position. However, in November 2011, she, following local application, was appointed to a ANO role in a South Eastern city on an acting basis.

2:2 In her new role she raised a number of issues in relation to difficulties she was encountering in carrying out the position. Considerable evidence was presented (31 pieces of correspondence /e mails) on her communications with her employers on the topic.

In summary, by the Equality Officer, the complainant’s issues could be categorised as falling into three categories

1) Administrative difficulties / Basic office Organisation of the ANO role / Secretarial Supports required for the role / workloads etc. A major issue was the large volume of files and filing necessitated by the ANO role. This gave rise to significant stress for the Complainant as the files were in a number of different physical locations both in the building where she worked and in other locations in the City. Her reduced mobility made this a particularly challenging issue. The large volume of photocopying required by the ANO role was also an issue as the mobility issues of the Complainant made the use of the standard height large office photocopiers difficult.

2) Payment issues – non-payment of an Acting allowance

3) Basic issues relating to her Disability – many as a result of matters carrying over from point 1 above

2:3 Matters proceeded and in 11th June ,2014 the Complainant requested in writing that she be reinstated in her substantive Grade V post.

2:4 On the 21st July a meeting with her Managers took place where the issues of her redeployment and the supports she was seeking were discussed.

2:5 An Occupational Health report was undertaken at the Complainant’s request (12th August 2014). This recommended that a Needs Assessment meeting take place in relation to the Complainant’s issues. This Needs Assessment never took place.

2:6 The Complainant then indicated in writing to her superiors that she hoped that she would be supported in her Grade V11 ANO role and would not have to go back to her Grade V position.

2:7 She was given a written directive by her Manager in October 2014 to return to her original Grade V role. Reluctantly she complied with this direction.

2:8 The Complainant’s Trade Union maintained that the Respondent employer was a major national organisation with substantial resources. Even allowing for the Public Service Moratorium and Health Service financial constraints the issues raised by the Complainant were clearly “Nominal” and could easily have been accommodated.

The Respondent was, in their view, clearly in breach of Section 16 of the Employment Equality Act 1998.

3: Respondent’s Submission.

3:1: The basic facts / dates as set out in the Complainant’s submission were accepted as was the disability of the Complainant.

The Respondent submitted that

• Ø They had made considerable efforts to facilitate the Complainant
• Ø Ground floor office space had been located and assigned to her – a number of choices had been offered to her in this regard. Another member of staff had been requested to move offices in an effort to provide accommodation for the Complainant.
• Ø A special / height adjustable desk had been provided for her
• Ø A scanner had been provided as an effort to reduce the need for photo copying which the Complainant found physically difficult.
• Ø What additional Secretarial support, (an Intern), as could be provided in a very challenging financial environment, was provided as long as it could be allocated to her.
• Ø The Needs Assessment, as recommended by Occupational Health, did not take place as the Complainant had, by then, moved back to her original Grade V position thereby rendering the Assessment unnecessary

3:2 The Complainant had requested by letter of the 11th June 2014 a return to her original Grade V positon – the clear implication to be drawn from the letter was that this decision was financial, motivated by the non receipt of the Acting Allowance. It was contended that the request to revert to Grade V was primarily financial and any disability issues were secondary. The Respondent relied heavily on this letter in their defence.

4: KEY ISSUES AND THE RELEVANT LAW.

4:1 Issues for decision

The key issues for decision in this case are, in number order

1. Has the Complainant a disability as defined by the Employment Equality Acts?

2. Did Discrimination on Disability grounds with concomitant failures to provide Reasonable Accommodation /Appropriate Measures as required by Section 16 of the Equality Acts take place?

3. Did the Respondent Employer demonstrate that they had a justifiable defence, a rebuttal, as provided by Section 16 (c) of the Acts to any alleged shortfalls in providing Appropriate Measures?

4. In particular, in the Respondent’s defence, did the Complainant’s letter of the 11 June 2014 requesting a transfer back to her former Grade V position effectively define her argument and complaint as largely financial in relation to the non-payment of the Acting Allowance rate of pay and consequently, by her own hand, side-line any Disability concerns she might have had

5. Would any measure that might be taken /have been taken impose a disproportionate burden on the Employer

4:2 Relevant Law

Section 2 of the Employment Equality Acts states:

‘‘disability’’ means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

4:3 In relation to the provision of Reasonable Accommodation Section 16 (3) & (4) of the Acts states:

“(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.
(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.
(4) In subsection (3)—
‘‘appropriate measures’’ in relation to a person with a disability—
(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,
(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but
(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

4:4 The Mitigation /Rebuttal Argument open to the Respondent relies upon Section 16(3)

Section 16 (3) quoted above states the possible grounds for a mitigation/rebuttal argument.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—
(i) to have access to employment,
(ii) to participate or advance in employment, or
(iii) to undergo training,
unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—
(i) the financial and other costs entailed,
(ii) the scale and financial resources of the employer’s business, and
(iii) the possibility of obtaining public funding or other assistance.

5: FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER

In considering the case I will follow the question format set out in Section 4 above. However, in Consideration of the Case / the Evidential basis required has to be specified.

5:1 The Evidential Basis required.

In evaluating the considerable evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts. The Labour Court has held consistently that the facts from which the occurrence of Discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. There is a basic concept in section 85A that if the complainant establishes a prima facie case that it is for the "respondent to prove the contrary".

5:2 The Dublin Corporation v Gibney (EE5/196) definition of prima facie evidence is generally accepted as the standard.

“Evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that the Discrimination has probably occurred.”

Accordingly, to address the Questions set out above in Section 4 above

5:3 Question One / Was there a qualifying Disability?

There was no debate on this point and the disability was accepted by both parties.

5:4 Question Two / “Reasonable Accommodation”

The landmark standard in the interpretation of “Reasonable Accommodation” or as stated in the Act “Appropriate Measures” cases has been set by the High Court, in a review of a Labour Court decision EDA 1430, Nano Nagle School v Marie Daly [2015] IEHC 785.

In this case Noonan J analysed the issue of “Reasonable Accommodation /Appropriate Measures”. in some depth.

The High Court noted Section 16(a) of the Employment Equality Act, 1998 as amended, defines “appropriate” measures” to include the “adaptation of both patterns of working time and the distribution of tasks”.

The Labour Court in EDA 1430 had held that although the complainant in that case was “severely limited” by her disability in the range of tasks she could perform “the respondent (employer) had a duty to fully consider the viability of a reorganisation of work and a redistribution of tasks amongst all the SNA as to relieve the complainant of those duties she was unable to perform”.

The Labour Court, in awarding € 40,000 for a breach of Section 16 in that case found that the respondent employer failed to fully or adequately consider all the possible options available.

The High Court, in upholding the position of the Labour Court held that

“At first blush a literal interpretation of Section 16(1) would support the Respondent’s conclusions. However, when read in conjunction with S16(3) and Section (4) it is clear that a person with disability is to be regarded as fully capable … if such a person would be so capable on the distribution of tasks associated with such job being adapted by the employer”

Noonan J continued and stated that

“the adaptation of the distribution of tasks must also, where appropriate, include the elimination of tasks since otherwise the section would fail to fail to achieve the objective for which the legislation was enacted.”

In his conclusions he did however state that any changes or adaptations should not impose a “disproportionate burden on the employer.”

5:5 Consideration of the Evidence / Reasonable Accommodation

Accordingly, having taken guidance from the High Court case cited above I reviewed all the evidence both oral and written in the case in hand.

The main evidence from the Respondent was that they had provided,

• Ø A choice of ground floor office space with dedicated disabled parking space
• Ø Adapting the desk to suit a disabled person
• Ø Addressing the Photo Copying issue by the provision of a desk top scanner
• Ø Ensuring that files located in other premises were made available by the internal mail system
• Ø Providing what clerical support they could, via an Intern, within their budgets

The Respondent’s position as regards Section 16 reasonable accommodation was that in essence they had discharged their responsibilities by the steps taken.

5:6 For the Complainant, the evidence was that in February 2013 she raised with management a portfolio of issues. The disability challenges for the Complainant in the ANO position aspect were identified in March 2012 by the Respondent’s OH Nurse. Copy of her E mail was supplied in evidence. The Complainant corresponded again on the 10th May 2013 with a request for a meeting to discuss the position. A meeting took place with the Disability Manager on the 14th May where the entire situation was discussed. By August 2013 disability issues were again being raised by the Complainant in relation to unsuitable physical location of files, photocopying issues, wheelchair toilet access etc. By September 2013 the Operations Manager did indicate that “some ideas around providing some clerical/admin support” were on the agenda. A minor accident took place with the Complainant’s wheelchair access on the 10th of September 2013 due to the unsuitability of the access ramp near the kitchen entrance. The Complainant maintained that it was a goods loading ramp for the kitchen and not a proper wheelchair ramp with side rails. The Complainant stated that she had, in this instance, to use her crutches to gain access and then transfer to the wheelchair once inside.

The Respondent’s Health and Safety Advisor visited the Complainant in March 2014 and identified a number of H&S / Disability issues that needed addressing. Report of the 28th April 2014 refers.

5:7 The Complainant identified from an early date in 2012 the need for some partial clerical /admin support with office photocopying and filing. It has to be remembered that, despite her disability, she struggled successfully to complete these tasks. The Complainant was highly motivated in her work in the ANO role. She gave convincing oral evidence. However, the Occupational Health reports identified the inappropriateness of this physical struggle with in particular the large office photocopiers. The report of the April 2014 warned of possible “musculoskeletal problems “for the Complainant arising from the photocopying issues.

The Complainant gave good oral evidence of the difficulties she had experienced in the varying physical situations outlined in the correspondence. She also outlined the Administrative challenges, filing, record keeping etc. that arose in the ANO role and which she felt were exacerbated by the difficulties she was having in relation to her Disability issues.

The question of providing some Clerical assistance was deemed, in oral evidence from the Respondent Managers, to be hamstrung by the Health Services staff and financial embargos – it was mentioned in oral evidence by the Respondent that the reductions in the numbers of staff and the need to balance competing staff resource claims among Sections of the local Organisation made providing secretarial/admin support to the Complainant next to impossible. Local Union issues with the use of Jobs Bridge Interns and competing Section Head claims for resources were also referred to.

On questioning at the hearing it was clear that only routine approaches were used by local Management in seeking part time clerical assistance for the Complainant. Little reference was made to efforts to secure assistance in a more innovative manner via for example other Disability support schemes or areas such as Jobs Bridge interns.

Removing the Intern, who has been of great assistance to the Complainant, on the pretext of alleged competing claims from other sections was referred to by the Complainant. This was acknowledged by the Respondent in evidence as regrettable but Internal /OH budget driven. The claim of the Complainant was for part time, a day or two a week of filing / photocopying assistance.

No evidence was advanced by the Respondent’s as to any consideration of a job redesign or reallocation of duties in the ANO role that might assist the Complainant.

5:8 Taking the requirements of Section 85A of the Acts I was at all times conscious to, in addition to the requirement of Section 16 as regards Reasonable Accommodation to carefully evaluate the “Rebuttal” evidence of the Respondent. In the Respondent’s evidence both oral and written there was considerable emphasis placed on the steps they had taken, as set out above, to, in their view satisfy Section 16.

5:9 In considering whether or not this was a suitable defence to the allegations that Reasonable Accommodation had not been provided and taking the High Court case (EDA 1430, Nano Nagle School v Marie Daly [2015] IEHC 785) referred to above I looked for evidence that a more extensive analysis of the needs of the Complainant and of her ANO position itself, had been undertaken by the Respondent.

However, from the correspondence trail, I formed the overall opinion, that despite repeated approaches from the Complainant there appeared to have been a lethargic reaction in response to her requests to have the office routines of the ANO role examined either from a business point of view or a disability perspective.

In the High Court case referred to above Noonan J had referred to “reducing/ redistributing the duties” – the Complainant was carrying out all the duties of the role but needed some part time assistance with filing. The burden for the Respondent employer was therefore considerably lighter than it might have legally been (if Noonan J referred to above had been followed closely) and made their responses to a request for some additional clerical support, from a large staff resource base, hard to understand.

At the Oral hearing the Union indicated that they would not, following proper consultation, have stood in the way of some special flexibility, despite their reservations with Jobs Bridge and other temporary measures generally, in regard to help for the Complainant.

In summary I found, after considering the written and oral evidence, that the relevant management was comfortable in relying on the most literal interpretation of the Health Service Moratorium in considering this case. No realistic consideration, other than a ground floor office, an adapted desk and some additional filing cabinets, was given to the need, as set out in Section 16 of the Acts, to consider the special needs of the Complainant or to take “appropriate measures”.

The, albeit strained, major resources in terms of Premises, Staff and Budgets available to the Respondent made this response hard to understand.

5:10 In summary in regard to Reasonable Accommodation I, having considered all the evidence, found that the Respondent failed to provide Reasonable Accommodation.

5:11 Question Three – Did the Respondent put forward a coherent and reasonable case in Rebuttal of the alleged failure to provide Reasonable Accommodation.

In their submissions and oral evidence, the Respondent was happy to rely on the steps (Ground Floor Office, New desk, Scanner and the partial use of the Intern) outlined above as their defence. The costs were trifling in terms of their available resources.

I could not find evidence to support the view that an in depth analysis of the actual job of the ANO and a more comprehensive approach to the entire situation as suggested in the Noonan J case (EDA 1430, Nano Nagle School v Marie Daly [2015] IEHC 785 cited above had taken place.

In regard to Communications the written evidence presented demonstrated that the bulk of the Communications in relation to the Complainant and her difficulties in the ANO positon were instigated by the Complainant herself. The Respondent was always coming from behind in these matters and gave the impression of not treating the Complainant’s issues as a priority.

In conclusion and in view of the above evidence I did not find that an adequate Rebuttal argument had been made by the Respondent Organisation.

5: 12 Question Four – Did the Complainant’s letter of the 11th June 2014 effectively make her case a financial one and allow the Respondent to overlook the Disability Issues.

In their defence the Respondent relied heavily on the letter of the 11th June 2014 from the Complainant requesting a return to her substantive Grade V position based it was alleged on the failure of the Respondent to address the Acting Allowance and the difficulties in regard to her Special needs. The Complainant made it clear in later correspondence that she hoped the Needs Assessment recommended by Occupational Health on 12th August 2014 would allow her to continue in the ANO role and accordingly set aside the requested return to the Grade V role.

However, the Assessment never took place as the Respondent directed her to return to her former position in November. I noted the meeting minutes supplied by the Complainant in regard to an unscheduled visit by Mr. JMcD, a local manager /co coordinator on the 14/10/2014 to the Complainant. This meeting, although uncorroborated by the Respondent, was in effect to deliver what appeared to be an ultimatum in relation to transferring back to the Grade V position.

Taking guidance from the procedures and precedents of the Unfair Dismissal Act, 1977, which was not referred to in the proceedings, I found that the letter of the 11th June 2014 should, have in the light of all subsequent correspondence in August to October 2015, been set aside as an almost “Constructive Dismissal resignation letter”.

I accordingly had to set the letter aside as the basis of any sustainable defence by the Respondent.

5:13 Cost Issues / Insupportable Burden of measure to be taken.

The issue of whether or not any costs associated with special measures taken would have been an “Inappropriate Burden” did not arise in view of the size and budgets of the Respondent and the trifling costs involved. In the overall context it has to be remembered that the Respondent Organisation is a major State funded Organisation with an extensive property portfolio, a very large number of staff and a significant budget. The Health Service financial constraints at the time were not such as to preclude a prompt addressing of the Complainant’s issues.

The steps taken and offered as a defence by the Respondent such as finding a ground floor office from among their many properties, the trifling costs of a new desk /scanner and the baulking at the minimal costs of approximately one day or a day and a half per week, photocopying/ filing assistance from either an Intern or a very junior staff member provided no plausible defence in any financial sense.

5:14 Overall Conclusions in relation to Questions 1 to 5 as set out above.

In summary and conclusion, I find that, having considered all the written and oral evidence presented, the Respondent Organisation did not understand or take their Section 16 responsibilities seriously and clearly discriminated against the Complainant in failing to provide the necessary “Appropriate measures”.

I found strong prima facie evidence, as required by Section 85 A of the Equality Acts, of a complete refusal to realistically address Section 16 issues being raised by the Complainant.

No evidence was adduced of any realistic or sustainable Rebuttal of the Discrimination argument. Section 5:11 above refers.

5: DECISION

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

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

with Section 79 of the Acts that:

• Ø The Respondent failed to provide the Complainant with Reasonable Accommodation under Section 16 of the Employment Equality Acts. Accordingly, the claim for Discrimination is well founded.
• Ø I direct that the Complainant be reinstated as soon as possible but not later that the 1st of September 2016 into an ANO positon at Grade VII (her former role) in the same Health Region and as close as geographically possible to her former location. If it is the case that only an acting role in the ANO is currently available this should be offered until such time as a permanent position becomes available for her. The Acting Allowance is to be paid immediately, if this situation arises. Her position on the national permanent panel is to be maintained or reinstated.
• Ø An immediate Assessment of Needs for the ANO position as recommended by Occupational Health in August 2014 take place and the findings be agreed with the Complainant.
• Ø The difference in Salary between the Grade V and the Grade VII (ANO) position for the period from November 2014 to the 1st September 2016 be paid to the Complainant as a Compensation lump sum for the distress caused by the Discrimination. As this is Compensation, it is, subject to Revenue approval, not a taxable amount.

__________________

Michael McEntee

Adjudication Officer/Equality Officer

16th June 2016