ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001563

Complaint for Resolution:

Venue: WRC, Tom Johnson House, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 27/09/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant is employed as an Outreach & Development Worker since 24^th November 2008. She is paid €17.50 per hour and works 17.5 hours per week. She has claimed that her employer has failed to provide reasonable accommodation for her disability and so has discriminated against on grounds of her disability. She has sought her employer provides reasonable accommodation and pays her compensation.

Complainant’s Submission and Presentation:

The Complainant’s Disability

The Complainant’s Doctor, confirmed in writing for the Department of Social Protection, for the purposes of supporting the Complainant’s application to work for the Respondent, on the 20^th October 2008, and again in subsequent years that the Complainant was suffering from colitis and had two major surgeries in this regard.

In the supporting application of October 2010, the Complainant’s Doctor specifically defines this as Ulcerative Colitis. Ulcerative colitis is a condition which is an inflammatory bowel disease and autoimmune disorder resulting in severe abdominal pain and discomfort, swelling of the abdominal area resulting in chronic diarrhoea urgent need of private toilet facilities, when in active flare-up, Prone to infections and fatigue. Medication, restricted diet and rest are required to manage the symptoms. These symptoms are compounded by stress. Also restrictions in lifting and carrying as prone to developing a hernia.” This requires that the Complainant does not: Lift, Carry, and is restricted to light office type work. It is respectfully submitted that Ulcerative Colitis is a disability within the meaning of Section 2(1) (b) of the 1998 Act, that being “the presence in a body of organisms causing, or likely to cause, chronic disease or illness” and Section 2(1)(c) “the malfunction, malformation or disfigurement of a part of a person’s body.” In A Government Department v A Worker EDA0612, the Labour Court accepted that a worker with Ulcerative Colitis had a disability within the definition of the Act. The Complainant then also contracted Breast Cancer during the tenure of her employment and required three surgeries, one mastectomy and two for reconstruction and also required invasive chemotherapy and radiotherapy. It is respectfully submitted that Breast Cancer requiring surgical intervention up to and including the removal of part of the Complainant’s anatomy comes within the definition of disability in accordance with Section 2(1)(b) of the 1998 Act as “the presence in a body of organisms causing, or likely to cause, chronic disease or illness”. In the Labour Court Recommendation A Government Department v A Worker EDA094, the Labour Court, in defining disability, stated… “It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it: 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”. The Labour Court then further went on to state that:

“It is now well settled that where a term used in a statute is defined by the statute itself a Court cannot look outside that definition in construing that term. As this Court stated in Gemma Leydon Customer Perceptions Ltd Determination EED0317 and again in A Worker v A Government Department 17 ELR 225 It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a court may not depart from the definition given by the statute and the meaning assigned to the words in the statute (See the decision of the Supreme Court in Mason v Levy [1952] I.R. 40”. The Labour Court concluded that in order to ascertain whether the Complainant in question in that instance had a disability they must ask the question of whether the condition from which the Complainant suffered had any of the effects or symptoms referred to in the relevant definition within the statutory provision. It is respectfully submitted that the definition within the statutory provision applicable to the Complainant comes with Section 2(1)(b) “the presence in a body of organisms causing, or likely to cause, chronic disease or illness” and while other definitions provided therein may also apply this provision is the most directly applicable.  It is respectfully submitted that the Complainant’s symptoms and effects sufficiently exceed the de minimus rule in so far as: The Complainant was in receipt of invalidity pension prior to and during the tenure of her employment, a benefit for which medical evidence must be forthcoming on reasonably regular intervals to ensure that payment is continued; That a requirement of the invalidity pension provision is that working while in receipt of same must be undertaken with the permission of the Department of Social Protection, and must be supported by medical support and a letter from the employer. When the Complainant was applying for permission to work for the complainant, her Doctor prescribed that the work on offer from the Respondent was recommended because the working time was restricted to 17.5 hours per week worked in a pattern of three to four hours per day over five days, and was subject to restrictions with regard to the Complainants requirement to be sitting in the course of carrying out her duties and that she would not be obliged to undertake any heavy lifting. The Complainant’s disability was still being documented by her Doctor to her employer when on the 9^th December 2013, the Complainant’s Doctor Dr John Ball wrote a medical certificate stating that the Complainant was to work not more than 12 hours during that week, as the respondent was due time of in lieu for hours accorded over her 17.5 hr and was refused the opportunity to recoup the TOIL by Ms Smith and listed in the within Medical Certificate that the Complainant suffered from “fatigue, multiple chronic illness. ulcerative colitis, and breast cancer, repeat investigations. A medical report from an Occupational Health Assessment procured on behalf of the Respondent confirms that on the 19^th June 2015 the Complainant was disclosing her extensive medical history and two underlying medical conditions. It is respectfully submitted that the Complainant has adequately demonstrated the operation of a disability, indeed a number of disabilities, which affect her and which qualify her to be included within the protected category of disability and for the protections of the Statute.

The Respondent’s Awareness of the Complainant’s Disability

In Connacht Gold Co-Operative Society v A Worker EDA0822 (Appendix 56: Recommendation of the Labour Court, dated 23^rd December 2008) the Labour Court found that it is for the Complainant to prove, as a matter of probability, the primary facts upon which [he] relies, and principally whether the Respondent was aware of the Complainant’s disability. That probability of knowledge can be shown that there is direct knowledge of Complainant’s disability or that the existence of the disability can be inferred from indications/signs which should alert a Respondent to enquire about [the] need for reasonable accommodation. It is respectfully submitted that this Recommendation demonstrates the Labour Court’s view that the test for operant knowledge of a Complainant’s disability is an objective test regarding whether a Respondent knew or ought to have known of the Complainant’s disability.

It is respectfully submitted that the Complainant more than adequately exceeds this bar and can demonstrate both direct and constructive knowledge for the following reasons: The Complainant was receiving an invalidity pension both prior to and during the course of her tenure with the Respondent, the conditions of said receipt obligating her to apply for permission to work on an annual basis for the first three years of her employment.   This initial and annual application thereafter was supported by her employer and her doctor. The initial application to the then named Department of Social and Family Affairs to undertake part time rehabilitative work required that the hours of work and rate of pay was confirmed by the Respondent, by signature and by the Respondent’s stamp on a form headed up with the name Invalidity Pension.

Invalidity pension is defined by the Department of Social Protection as “Description of Scheme - Invalidity Pension is a Pension paid to people who are permanently incapable of work because of illness or disability. It is based on a claimant's social insurance contributions and the personal rate of payment is not means tested” as per the Department’s own website. The Complainant was absent on sick leave on numerous occasions during her tenure and on one occasions her return to work was preceded by a report from an Occupational Medical Report which was followed up with a meeting between the Complainant and Respondent. During this meeting it was confirmed that the Complainant would return to work on a gradual basis, increasing her working hours over a three week period up to a normal hours in the fourth week.

During the Complainant’s first meeting with the now Manager ES and the Chairperson of the Board, AM held on the 15^th November 2013, ES for the Respondent asked the Complainant for a schedule of hospital appointments and then the minutes as signed by the Respondent and Complainant record “Eileen asked Cathy to reflect on the role and work of Outreach worker, and the impact this role/work has on her current health. Cathy spoke of the need for support. Eileen and Cathy to discuss this further” In the next scheduled meeting between the Complainant and Ms Smith and Ms McCormack for the Respondent, the minutes, as signed by both the Complainant and Respondent state “Eileen also requested that any social welfare payment received by Cathy during her sick leave be given to HFRC. Cathy explained that she was in receipt of partial disability payments, so therefore did not receive social welfare illness benefit when out work on sick leave. Eileen asked Cathy to bring in documentation relating to Cathy’s partial disability for our records, as there is no mention of this on her files. Alison asked Cathy if her disability interfered with her ability to carry out her role and Cathy stated that it did not” The Respondent by letter dated 26^th January 2015 confirmed that the Complainant described her disability to them as “ulcerated colitis”. In a replying letter dated 28^th January 2015, the Complainant confirmed in writing her disability as “Ulcerative Colitis … I have had a subtotal colectomy in 2003 followed by a Perianal Colectomy, in 2007. I am also asymptomatic for Crohn’s disease”. In the above named letter, the Complainant also set out her work hours and the reasons for same stating “In relation to work hours I work mornings as I find by the afternoon I am fatigued. I must state that at no point does this mean I won’t be flexible to facilitate working afternoons should the role of outreach and development worker require it, but not to cover other roles and responsibilities” . During her working time she attended for another Occupational Medical Report. In the most recent report, dated 19^th June 2015, the Doctor conducting the report states that the Complainant “disclosed an extensive past medical history, much of which you are aware. There is no evidence in the Data disclosed to the Complainant under her statutory Data Request that the Respondent wrote to their medical advisors correcting this assumption and requiring that their Doctor ascertain what medical history she was speaking of. The Respondent Chairperson was a long-time friend of the Complainant and during her cancer treatment attended the Complainant on a daily basis. AM has known the Complainant for over twenty years and maintained a close personal relationship throughout the time when her initial surgeries were required and has intimate knowledge of the Complainant. It is respectfully submitted that the Complainant has exceeded the objective test that the Respondent was on direct notice of the Complainant’s disability both from prior to her appointment and throughout her tenure to the present time. During the course of her tenure the Complainant contracted cancer, a fact well known and documented to the Complainant and that this condition would in and of itself satisfy the test that the Respondent was aware that the Complainant had at least one disability. It is respectfully submitted that the Complainant does not have to rely on imputed knowledge or inferred knowledge of her disability because there is direct evidence of notice to and knowledge of disability on the part of the Respondent. While it is acknowledged that there was a considerably high turn over in staff within the Respondent during the tenure of the Complainant’s employment, this does not remove the onus on a Respondent to ensure an accurate handover of information between successive employees regarding a legal entitlement pertaining to a particular employee. It is respectfully submitted that the Complainant had a reasonable expectation that knowledge of her disability should be passed from one Manager/Coordinator to another and no onus of informing subsequent employees of the Respondent should fall to the Complainant. Further, the Complainant’s friend was on the Board of Directors and during the course of the discriminatory treatment accorded to the Complainant was the Chairperson of the Board. Despite being in possession of personal knowledge of the Complainant and her health issues, which should have supported the Complainants assertions, the Chairperson AM merely treated the Complainant as an employee with an absentee issue, instead of giving due consideration to her responsibilities to the Respondent Company to ensure execution of the legal duty of care towards an employee with a disability.

The Discrimination Alleged by the Complainant against the Respondent

While it is acknowledged that Article 2 of the Framework Directive in relation to Equality obliges the Complainant to demonstrate that there is a connection between the disability and the alleged discriminatory acts, it is respectfully submitted that an employer has a number of duties with regard to an employee with a disability of which the employer is aware, as follows: Employers must ensure that discrimination does not occur either inadvertently or unconsciously. In A Technology Company v A Worker EDA0714 the Labour Court stated that “A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution…” Employers are not merely obliged to treat all employees in the same manner when one employee has a disability, but instead they are obligated to consider how a decision which may be imposed on all employees affects an employee with a disability. In An Employee v A Broadcasting Company [2012] ELR 88 the Labour Court found that where the Respondent argued that the Complainant was treated in the same manner as other employees in relation to the assignment of roles within the organisation, this constituted direct discrimination on grounds of disability as the same rule was applied to different circumstances having regard to the disability of the Complainant. The Labour Court in so ruling recognised that disability is not an irrelevant consideration and its particular requirements must be taken into account before decisions are made which can adversely affect a person with a disability. When returning to work following a period of prolonged disability related absence an employer had a duty to recognise the vulnerability of the employee with a disability and ease their return. In An Employee (Mr O) v An Employer (No. 2) [2005] ELR 132 the Labour Court found that the employer had failed to treat the employee in a sympathetic manner upon his return to work and instead was intent on making the employee’s working life difficult and in that instance found that the employer had constructively dismissed the employee. Section 16 of the 1998 Act, as amended by the Equality Act 2004 requires that employers take appropriate measures to accommodate an employee with a disability to carry out their role where the said appropriate measures do not create a disproportionate burden for the employer. It is respectfully submitted that the converse of this obligation places a burden of proof on an employer who fails to accommodate appropriate measures to justify their failure to act by proving that the only action open to them in accommodating the employee places a disproportionate burden on them. In Department of Justice, Equality and Law Reform v Kavanagh [2012] ELR 34 the Labour Court determined that the purpose of appropriate measures or reasonable accommodation is to render a person fully capable to undertake the full range of duties associated with their posts.

Employers are also obligated to undergo a process whereby the reasonableness of the accommodation required is assessed in a proactive and transparent manner. In A Worker v An Employer [2005] ELR 159 the Labour Court in an analysis of what constitutes special treatment stated “The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would have awarded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.” The proactive nature of the duty to consider appropriate measures was proclaimed by the Labour Court in Mr A v A Government Department EDA0612 .

Employers are obligated to accord the important of medical advice and to adequately consider its content. In An Employee v A Telecommunications Company DEC-E-2009-073 the Equality Officer expressed dissatisfaction at an employer misinterpreting the finds of its own doctor. It was also found in that case that the employer is also obligated to demonstrate with documentary evidence their consideration of reasonable accommodation.

It is respectfully submitted that the Respondent has failed in all of these duties in that: The Complainant commenced her employment with the Respondent on a contractual basis working 17.5 hours per week over five days. This has been demonstrated by her work sheets in the initial years of her employment, the return to work schedule as agreed and her contract of employment. These hours and work pattern afforded the Complainant the ability to manage her disability. Upon the commencement of employment of ES : Obligated the Complainant to change her working hours from 17.5 hours over 5 days, to 2.5 days without any consideration of the Complainant’s disability. Ignored the advice of the Respondent’s own medical advisor who stated that “the Complainant is medically fit to safely continue at work. With respect to Ms Moore working two full days and one half day instead of her current five half day week, I recommend the Complainant is reasonably accommodated with continued access to five half days per week given her ongoing medical symptoms. However, in my view, these symptoms could improve and a trial of gradual increase in her daily hours could be introduced over the weeks and months ahead. I suggest that this may take the form of a slight increase in her hours on any given day. For example, one hour per day followed by one hour less the following day with a view to slowly increasing her daily hours, if this is required on a long term basis. This approach could allow for her eventually achieve working 2 full days and one half day per week in the future”. Within four weeks the Complainant was obligated to work 2.5 days per week or face disciplinary action despite the clear statement in this report that it may well take the Complainant months to achieve a working pattern of 2.5 days. In this regard, the Complainant’s trade union representative wrote to the Respondent with regard to the hours for which she was contracted to work and the Respondent dismissed this letter deeming that the Complainant had agreed to a change in her working hours, despite repeated protestations in this regards from the Complainant . The Complainant was obligated to participate in childcare despite the fact that this was contrary to her job description and when she repeated raised the objection to this work on the grounds of her disability, ES denied the factual basis of her objections by dismissing her concerns in repeated emails and finally by letter of 29^th June 2015. Insisted that the Complainant be referred for a Medical Report regarding her ability to carry out this work which was not part of her contractual obligation. Insisted on the Complainant carrying out the work despite medical advice noting her limitations. The Respondent was repeatedly treated as an inconvenience as a consequence of her disability:

A “Welfare Meeting” was held on the 21st January 2015. This meeting was attended by Ms Smith, the Coordinator, and Ms McCormack the Chairperson of the Board on behalf of the Respondent and the Complainant. The Complainant was unaccompanied at the meeting. The Respondent was told, inter alia, that her pattern of absence was disrupting the delivery of service and causing an impact on the other staff and also accused the Complainant of delivering her sick certificates late, all of which resulted in the Respondent’s inability to recruit a temporary replacement. This was stated despite the fact that the Complainant was in possession of a letter from the Chairperson acknowledging that she had advised regarding her absence thereby allowing a replacement to be recruited to cover her absence. During this meeting the Complainant’s disability for over a period of 10 years was noted. The Complainant stated that she did not require anything specifically from her employer with regard to her disability, but stated that her preference was to work the hours as set out in her contract of employment which were 17.5 hours per week over five days. This statement was rejected as not being in keeping with the needs of the organisation. On the 10th February 2015, Ms Smith for the Respondent wrote to the Complainant, acknowledging receipt of her letters of 26th January and 28th January, noting that the Complainant was scheduled to return to work on May 5th 2015. This letter does not make any reference to the Complainants objection or clarifications and instead merely reinforces that blame for any disruption is the fault of the Complainant. The Complainant is continually noted in the Minutes of the Board Meetings as “still being out sick” which while factually correct is unnecessary reporting of the Complainant by name, in breach of any privacy or dignity rights and treating her disability as an inconvenience. When the Complainant made a complaint and attempted to engage with a Personal Harassment and Bullying Procedure with regard to her experiences with Ms Smith, the Respondent organisation engaged in a course of treatment which was discriminatory and without any consideration or regard to her disability: The investigator did not provide her with terms of reference in advance of her meeting with him. When the investigator issued a draft report, the Complainant engaged immediately within the 5 day requirement and was met with a wall of silence and non cooperation with regard to her needs in objecting to the report. When the Complainant noted this failure to engage on the part of the investigator and his failure to cooperate with her reasonable request to return documentation to her so that she could be afforded the opportunity to support her objections to its findings, the Board appointee dismissed her objections out of hand. One of these objections was that the investigator had failed to interview the complainant’s witnesses which in and of itself is a serious breach of natural justice and fair procedures. These objections were noted by the Complainant’s solicitor Ms O’Sullivan to the Respondent and Ms O’Sullivan’s objections and appeals on behalf of the Complainant were dismissed in writing. The investigator engaged in personal and damning commentary about the Complainant in his report which was inappropriate, defamatory and beyond the scope of the investigation. The Final Report was circulated to all members of the Board thereby sabotaging any possibility of an objective appeal of its findings. The Complainant on her return to work sought annual leave, and was refused, she then sought unpaid leave and was refused and finally for the week in question she provided a medical certification for her absence. Upon her return to work she was asked to account for her absence. When she did so and demonstrated that it was in relation to her illness, this was ignored by her liaison manager who then proceeded to be the complainant in a disciplinary investigation, the investigator and the adjudicator in the disciplinary process. The Complainant was deemed to have given a satisfactory explanation but remained sanctioned with a warning regarding the content of her medical certification. This action on the part of the Respondent demonstrates a total lack of regard for the Complainant’s disability and there is no evidence of consideration of her requirements at any point. The Complainant upon her return to work was obligated to move offices to an upper floor and commentary was given regarding her use of the toilet by ES despite the fact that her toileting requirements are intimately connected with her disability. No enquiry in this regard was ever made. The Complainant upon her return to work at present faces into: A requirement to work 2.5 days per week or face disciplinary sanction An investigators report containing biased and prejudicial determinations which is deeply flawed in its findings and procedures, which the Board of Directors accept, and from which there is no effective means of appeal . Disciplinary sanction regarding an alleged complaint which was anonymously made and about which no formal process was adhered to It is respectfully submitted that the Complainant has been subjected to discriminatory treatment arising out of her disability and inability to work full days contrary to the protections to which she is entitled under the Employment Equality Acts 1998-2015.

CONTINUING DISCRIMINATION AND TIME LIMITS

It is the position of the Complainant that she has been subjected to continuing acts of discrimination over a prolonged period of time, resulting in the last act of discrimination in September 2015, her last day at work. It is acknowledged that there are events stated within this submission which arose outside of the six month time period provided for in section 77 of the Employment Equality Acts, however, it is the position of the Complainant that they constitute together separate manifestations of the same disposition to discriminate also known as a chair of discrimination. The Labour Court has taken a pragmatic approach when considering such chains of discrimination claims and has stated in Department of Health and Children v Gillen [2005] ELR 141, An Employee v A Government Department DEC-E2009-028 and Ibidunni v Boston Scientific (Ireland) Limited [2011] ELR 158: “Two acts can be considered as separate manifestations of the same disposition to discriminate. If the last alleged act of discrimination is within the time period specified in the Act, which both parties concede it was, the court may take into consideration previous occasions in which the complainant was allegedly discriminated against on the same ground”. In Waldron v North West Health Board DEC-E2003-021 the Tribunal held that it had jurisdiction to deal with all of the discriminatory incidents alleged despite the incidents commencing two and a half years prior to the referral of the complainant, as the most recent act had occurred within six months from the date of the referral . The Waldron and Gillen cases permitted distinct incidents to be adjudicated upon provided that they were related to and arose from the same protected ground. It is respectfully submitted that the Complainant cites a course of treatment of her that arises from the fact that she has had frequent absences due to her disability, that her hours were changed and no consideration of her disability was given and that there is a micro management and observation of her in order to create an environment whereby it is impossible for her to work there and that she will voluntarily leave because of her disability. Everything cited by the Complainant arises from her disability – which at first in her employment was accommodated, and once Ms Smith became the Manager, was no longer accommodated or considered.

It is respectfully submitted that the Complainant was employed by the Respondent who at that material time had full knowledge of the Complainant’s disabilities and not only that assisted her in making an application to be permitted to work while claiming an invalidity pension, not only on the occasion of her first employment, but annually thereafter. Following a period of absence due to cancer treatment, when the Complainant returned to her place of work with the Respondent she was treated as an employee with an absentee issue, instead of an employee with a disability requiring reasonable accommodation. The Complainant was: Subjected to questioning regarding her ability to carry out her role despite more than satisfactory performance in that role prior to the appointment of ES. Obligated to work hours which were contrary to the management of her disability or face sanction. Obligated to undertake work that was beyond the scope of her job description, that is work in a childcare role or face disciplinary sanction. When she made a complaint regarding her treatment, the complaint was handled in a manner that violated her rights of natural justice and fair procedures and her difficulties and needs were dismissed. Her personal needs for privacy in the management of her disability were dismissed in that she was denied access to a private toilet and where she accessed same this was commented upon. Medical advice sought by and at the behest of the Respondent was ignored by the Respondent and engaged in argumentatively with the Complainant. She was discussed at Board meetings, in emails and in advance of findings in a manner that discloses a bias and discriminatory attitude towards her. She was made to face, and still faces, disciplinary actions arising out of the Respondent’s consistent dismissal of her disability and the needs that arise therefrom. That she was denied any effective means of redress or hearing when airing her complaints. She was undermined and considered a nuisance, and embarrassed as a consequence of her disability, totally contrary to the spirit of the Employment Equality Acts. The Respondent was entitled to have her disability considered with discretion and respect, this was and is being denied to her. If the Respondent had objective operational requirements which are contrary to the needs of the Complainant and therefore the Complainant’s reasonable accommodation was no longer reasonable, then it is incumbent upon the Respondent to objectively provide evidence of same and compensate the Complainant accordingly.

It is respectfully submitted that the Complainant has reasonably met her burden of proof and we humbly request the Adjudicator to recommend in her favour.

Respondent’s Submission and Presentation

When the Complainant joined the company her terms and conditions of employment provided for flexibility, “It is likely that you may be required to work on other days or that some evenings and week-end work would be required. Due to the nature of the work she regularly worked other hours and some evenings and afternoons. The Respondent also changed her hours at her request. at the time of joining there was no indication that she had a disability or a request for special accommodation, except she advised that she had a serious medical condition which meant that she could do heavy lifting. Heavy lifting was not a requirement of the job. As part of an application for an Invalidity Pension the Respondent confirmed that she was not required to carry out any physical duties. This was not then seen as an accommodation. In 2011 she was diagnosed with cancer which meant that she was absent from work for 2 years and 7 months to September 2013. Following a medical examination by the Respondent’s Doctor a phased return to work was agreed. Upon her return it was explained that changes had taken place during the last two and a half years. There were never any private toilet facilities available or requested. She was located upstairs and there was a toilet there was 5that was private as nobody passed by it. She never raised a query about this. Upon her return to work the only reason she was in an office on her own was to allow her to read up on matters. A new Coordinator ES was appointed in October 2013. In December ES out of genuine concern raised with her how the job was affecting her health. Her level of absence since her return was discussed. At a meeting on 12^th December 2013 ES raised the matter of her disability having any effect on her ability to do her job. The Complainant stated that there was not an issue with regard to her ability to do her work. Due to the changes in the business she was asked to support the service over a 3 day rather than 5 day arrangement. The new working hours were accepted and put in place in the New Year. She was now working 2 full days and 1 half day. A review took place in March because of the Respondent’s concerns about the work slipping and her lates. She went out sick following surgery from 21^st July to May 2015.During a review in early 2015 she was asked to describe her disability and it was confirmed a Ulcerated Coilitus which she had for about 10 years. When she was asked if it required any form of support or accommodation she replied no. Around this time she lodged a complaint of bullying and harassment against ES. The Respondent appointed an External Investigator to examine the complaint. The Investigator did not uphold her complaint. An issue arose reading her holiday’s request which was denied because she hadn’t accrued time off an also there was Cultural Day occurring when she had planned to be away. An issue arose regarding the minding of children. She complained of fatigue and was allowed to work continue on half days. She attended the Company Doctor who made recommendations.

She has claimed that she was discriminated against on grounds of disability. There is no evidence that she had advised her employer that she had a disability. The request that she do some child care work was a lawful request. She was not required to lift any child. Following a long absence from work many changes to the organization had taken place and the Respondent had to change working hours to meet the needs of the business. Her terms and conditions provided for changes in her working hours. She changed her hours to facilitate an arts course she was undertaking. When she raised a fatigue issue she was referred to the Company Doctor. The Doctor did not state that she couldn’t do full days. Even her own Doctor stated that she should work no more than 5 hours a day for a month when she returned to work.

Burden of Proof

The Labour Court in EDA09 l7 Melbury V Valpeters, sets out the position very clearly as to the consideration that must be applied when examining whether the Burden of Proof had been established. ln this matter the Court stated the following "Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule".

Accordingly taking all the materials presented both orally and in submissions the prima facie evidence to substantiate a claim of Discriminatory treatment has to be clearly identified if this claim is to succeed.

Discrimination

The Employment Equality Act, Section 6(1), defines the basis upon which discrimination can be taken to have occurred. In this regard section 6(1) states as follows. "For the purposes of this Act and without prejudice provisions relating to discrimination occurring in particular circumstances. Discrimination shall be taken to occur where a person is treated less favorably than another person is, has or would be treated in a comparable situation on any of the grounds specified in sub section 2 ".... In this regard sub section 2 states “as between any two persons, the discriminatory grounds are ... (g) that one is a person with a disability and the other either is not or is a person with a different disability ".

It is essential for Ms. Moore to show, not only that she was treated less favourably than another person, but that the discrimination was on the basis of her disability. Ms. Moore has not identified any person against whom she can be compared with regard to this requirement.

In relation to the matter of Reasonable Accommodation, the case of Niamh Humphrey's V Westwood Fitness Club has been relied upon significantly in relation to employers conduct when dealing with a person who suffers from a disability. Whilst establishing that a disability exists, this does not necessarily mean that there is a need for a reasonable accommodation. The need for a reasonable accommodation arises from the need to facilitate, within reason, a person to carry out their job. If the disability itself is not impairment then the obligations does not arise. The issue that arises in this case is whether her disability was advised to her employer and that she required a reasonable accommodation in order for her to do her job? The respondent would contend that in this case. She was not unable to do her job like any other employee as a result of a disability. She has gone to great lengths to establish that her Ulcerative Coilitus was a disability within the mean ng of the Act. However, throughout her employment with the Project she has never indicated that she required some form of accommodation because of this condition. ln fact to the contrary she made it patently clear that her condition was not in any way i interfering with her ability to do her jo b or th e way in which she carried out the job.

It was not until the meeting with ES and AM on the 21^st January 2015 that the respondent was aware of the fact that she had this condition and even at that time she confirmed that her condition had no impact on her ability to do her job.

Throughout her employment and absences her employer has made a lot of effort to establish the facts, consider them and decide if there was any way the complainant should be accommodated.

The Westwood decision found "the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts considering the employees condition and that the employee is given fa ir notice that the question of his or her dismissal fit capacity is being considered. The employee must also be allowed an opportunity to influence the employer’s decision. In practical terms this would normally require a two stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from a disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employees Doctors or obtained independently. Secondly if it is apparent that an employee is not fully capable Section 16(3) of the act requires the employer to consider what if any special treatment of facilities may   be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes normal cost would depend on the size of the organisation and its normal resources. "

The Court went on to examine this obligation in more detail in A School v A Worker, (EDA 1430) where in its conclusion stated. "It is clear from the decision of the CJE U in HK Denmark that the duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. The duty is imposed on employers and it is for the employer to make an honest and informed decision ofwhat is reasonable and proportionate having regard to all of the material circumstances. That involves putting a number of considerations into the balance including the practicality of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required.

Where an employer reaches an honest and informed decision having considered all of the available options the Court must show a high degree of deference to that decision and should not seek to substitute its opinion on what is possible or reasonable in the particular circumstances of that employment. If, however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available they will have failed in their statutory duty toward the disabled person”.

These decisions clearly outline the steps and standards an employer should follow when considering someone's ability to return to work. In this particular case there is no doubt that the respondent sought information regarding the Complainant's medical condition over a considerable period of time. The medical reports were consistent in their diagnosis and general recommendation which was to facilitate a return to work after absences, on a phased basis and at all times the respondent acted in accordance with these reports.

CONCLUSION

Based on the above facts the Respondent makes the following observations in relation to the acts of discrimination which she alleges were perpetrated against her.

When she returned from illness the Respondent did not recognise her vulnerability.

In this regard the Respondent would contend that at all times when she returned to work all advice available was taken on board. On each occasion her return to work was phased to allow her to settle back in. Where medical guidance was provided this was followed but her work routine was constantly being interrupted with absences, some related to her underlying conditions and some not. It is also noteworthy that very few issues, if any were raised throughout the supervisory meetings which dealt with all aspects of her work and where issues were raised they would be addressed. A good example would be the concern she had in relation to the summer project, and the respondent allowed her not to get involved, even though she was not being asked to lift anything.

Failing to take appropriate actions when made aware of a disability.

She did not make the employer aware of any disability except in relation to feeling tired after returning from her cancer treatment. ln that regard the respondent based their r actions on the advice of the medical practitioners.

The employer changed her working hours.

In this regard under the claimants terms of employment she may be required to work other hours. She did work other hours such as when she was attending a course and she requested that her hours be changed to facilitate this, or where she wanted to work afternoons rather than mornings for personal reasons. It is clear that whilst her contract stated what her hours were when she commenced employment, these clearly were not written in stone as they were varied by both parties to suit their requirements at the time.

She was forced to do child care work.

In this regard her issue related to lifting children, and at all times she was not required to do such duties and other staff were allocated to provide assistance where necessary.

She was treated as an inconvenience.

As was identified by the Investigator, an employer is entitled to manage his business and in this regard it’s apparent that unfortunately her absences were leaving the Project in the difficult position of not being able to recruit suitable replacements for her. In such circumstances it is not unreasonable e for her employer to try and achieve some level of order in planning workload demands which was resulting in a lot of pressure being placed on the remaining staff.

She was not treated properly under the Bullying and Harassment procedure.

In this regard it is contended that the respondent acted unreasonably in using the services of an independent   investigator. The Respondent has accepted the findings of the investigator and she has been afforded the opportunity to make her appeal of the findings.

The respondent showed complete d disregard for her disability when they investigated her absence which occurred at the same time as the leave that she had been refused.

The respondent exercised its right not to agree to leave as all staff were needed for a special day for the Project that fell in that week. She was clearly put out over this and submitted a certificate to cover her absence. Like any employer would, this was investigated and when she presented her explanation this was accepted. This was not a matter of showing disregard towards her but rather was showing that where a member of staff absents themselves in such circumstances it will be examined so as to ensure that there is no abuse of the system.

She was required to move to an office upstairs.

She is suggesting that ES had no regard in relation to her toileting requirements. As has been indicated above, ES was not made aware of any specific requirement s and she had the same level of access to toilets as she had when she was working out of the first floor. She did not have the use of a toilet to the exclusion of others and had never requested such a facility. The office arrangements had been changed during her absence to suit the operational requirements of the Project and had nothing to do with her at all. ln this regard , as noted above, the only issue that was discussed during subsequent supervisor y meetings in relation to the office upstairs was concerning the matter of the health and safety risks of carrying drinks up the stairs in non sealed containers.

The Respondent contends that the only issue that she brought to the respondents attention was her fatigue from working all day. The Respondent contends that this must be considered against the medical information that indicated that there would be no reason why she could not work the revised hours provided she was allowed to build up to the hours, which the Respondent maintains they did.

No other disability that required either a reasonable accommodation or some exceptional treatment was brought to the respondent's attention. This being the case the respondent would contend that there is no basis to the claim that the Respondent discriminated against her as a result of a disability.

FINDINGS

I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination. The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden required her case cannot succeed. 

I note the detailed written and verbal submissions made by both parties.

I note that the complainant’s submission covered the entire employment history and referred to matters outside the scope of this investigation concerning industrial relations matters which was not necessary.

I note the conflict of evidence presented to this hearing.

I note that the standard of proof required is the civil standard the balance of probability.

The first matter that has to be established is whether the Respondent was aware that the Complainant had a disability and that she required accommodation.

I note that it is the Complainant’s position that the Respondent was aware because she had raised this when she applied for the post and had submitted an application for an Invalidity Pension and did so for a number of years thereafter.

I note that it is the Respondent’s position that while they were aware that she had applied for an Invalidity Pension they did not enquire about it, as it was not their business.

I note that the Complainant gave evidence to the hearing that she did not specifically advise the Respondent that she had a disability, which required accommodation.

On the balance of probability I find that the Respondent was not aware that she had a disability when she commenced employment.

I note that the Complainant was absent from work from February 2011 to September 2013 resulting from a cancer diagnosis.

I note that the needs of the business had changed which required a restructure of hours worked.

I note that it was not until ES commenced employment that she advised the Complainant that there was nothing on her file concerning a disability. This was 12^th December 2013.

I note from the Respondent’s minutes of this meeting on 12^th December 2013 that the Respondent asked if her disability interfered with her ability to carry out her role and that the Complainant stated that it did not.

I note that the Complainant alleged that she requested to view her file in the presence of ES. On doing so she alleged that she found a reference to the disability but did not bring this to the Respondent’s attention.

I find this inexplicable from the Complainant’s position.

I note that the complainant was absent from work due to surgery from 21^st July 2014 to May 2015.

I note that due to her lengthy absence from work the Respondent met with the Complainant on 21^st January 2015.

I note that it was at this meeting that the Complainant advised that her disability was Ulcerated Coilitus, which she had suffered from for 10 years.

I note that at this meeting on 21^st January 2015 the Respondent asked “does your disability affect your ability to carry out your role and she said no.

I note that a copy of these minutes was sent to her and that she responded on 26^th January 2015 and did not contradict them.

Therefore I must conclude that she accepted them and in doing so accepted that she did not require accommodation for her disability.

I note that she never raised a grievance / query about toilet facilities after she returned to work following her absence from work.

Therefore I must find that she did not request accommodation when it was offered by the Respondent.

Therefore I find that the Complainant has not established a prima facie case of discrimination.

DECISION

As per Sec 77 of the Employment Equality Act, 1998 I am required to make a decision.

I have decided that the Complainant has not established a prima facie case of discrimination therefore this complaint must fail.

Eugene Hanly

Adjudication Officer

Date:             29^th November 2016