EDA1629

FULL RECOMMENDATION

ADE/16/28

DETERMINATIONNO.EDA1629

DEC-E2016-021

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

PARTIES :

A STORE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

A WORKER
(REPRESENTED BY MANDATE)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal Of Adjudication Officer Decision No DEC-E2016-021.

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 8th September, 2016. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by the Employer against the decision of an Adjudication Officer/Equality Officer under the Employment Equality Acts 1998 – 2015. The Adjudication Officer/Equality Officer held that the Employer had discriminated against the Worker on the ground of disability and had failed to provide her with appropriate measures/reasonable accommodation to allow her to return to work in May 2013. The Adjudication Officer/Equality Officer awarded the Worker the sum of €30,000 in compensation.

The claim was presented to the Equality Tribunal on 28^thMay 2013. It was heard on 12^thJune 2015 and the decision under appeal was issued on 28^thJanuary 2016.

For ease of reference the parties are given the same designation as they had at first instance. Hence the Employer will be referred to as the “Respondent” and the Worker will be referred to as the “Complainant”.

The Parties

In accordance with normal practice in cases such as this the parties are anonymised in this Determination. The Respondent is a major retailer. The Complainant is a woman who was employed by the Respondent as a Sales Advisor.

Background

The Complainant suffers from Multiple Sclerosis. She was employed by the Respondent in 2006 as a Sales Advisor working 37.5 hours per week and based in Newbridge, Co. Kildare. In 2008 she successfully applied for a transfer to Food Stock Management role. Her contract of employment provided that she could be assigned to work in any area of the Respondent’s store. In or about 2010, she was transferred to the Respondent’s store in Naas, Co. Kildare and was assigned to work in the bakery of the store. On 30^thMarch 2011 she was diagnosed with Spondylitis, a condition affecting her lower back and she also developed dermatitis and a condition affecting her eyesight. It transpired that she was in the early stages of MS at this time. She went on sick leave on 25^thApril 2012. In a letter to management dated 17^thJuly 2012 the Complainant’s GP notified them that the Complainant had been admitted to hospital and after extensive investigations and was diagnosed with an optic neuritis secondary to Multiple Sclerosis. Attached to the letter was a leaflet outlining the causes, symptoms and treatment etc. of Multiple Sclerosis.

On 13^thFebruary 2013, the Respondent referred the Complainant to an occupational physician (Medmark). The physician examined the Complainant on 20^thFebruary 2013, and issued his report on 27^thFebruary 2013. This report stated that the Complainant’s condition was stable and that she would be in a position to return to work shortly. He stated that while she was due to have discussions with her doctor and specialist the following week, and as a result was expecting to commence more definite therapy over the next coming weeks, he could find no reason why she could not go back to work shortly. The report stated that although there was a theoretical risk that someone with her conditions may have an exacerbation of their symptoms when exposed to a warm situation, fortunately the Complainant had not complained of such symptoms.

On 29^thApril 2013 the Complainant was certified by her GP as fit to return to work, however, her GP made this conditional on the Complainant being restricted to light work in a different area of the store, due to her difficulty in standing for eight hours and working in heat. On 2^ndMay 2013 a meeting was held between management, the Complainant and her trade union representative to discuss the Complainant’s return to work. Management stated that she needed to be certified fully fit to perform her current role in order to return to work. The Respondent’s position was reaffirmed in an email the following day. At the same time the Union sent a letter dated 2^ndMay 2013 to management outlining its position following the meeting. This letter referred to the Complainant’s GP certificate of 29^thApril 2013 and also stated that the Complainant was suffering from a serious illness, however, she was more than capable of carrying out all but one duty that being in the bakery. In response to the Union’s letter management wrote to the Union stating that the Respondent could not allow the Complaint to return to work unless she was fit to resume all duties, and held that if she could not work in the bakery she was then not fit to return to her contracted position. The Complainant referred her claim under the Acts to the Equality Tribunal on 28^thMay 2013. The Respondent announced the closure of the store in Naas on 7^thAugust 2013 and the Complainant was subsequently made redundant.

Summary of the Complainant’s Case

Ms Amanda Kane, Mandate Trade Union, on behalf of the Complainant, submitted that the Complainant was discriminated against by the Respondent on the grounds of her disability. She contended that in the absence of any explanation of why it was not possible to allow the Complainant to work in another area of the store it was legitimate to infer that the Respondent had discriminated her by refusing to provide her with reasonable accommodation. Ms Kane submitted that the Respondent had failed to carry out a robust inquiry into her ability to work in the store and in that context she citedA Health and Fitness Club v A Worker EED037where the Court had identified the necessity for a Respondent to conduct a two stage inquiry. In this case she submitted that the Respondent failed to establish correctly the Complainant’s capacity to undertake her duties and she submitted that it gave no consideration to what if any special facilities could be made to allow the complainant to become fully capable. Ms Kane contended that a reasonable employer would have relieved the Complainant of the necessity to work in the bakery. She submitted that the Respondent was fundamentally misconceived as to its obligations under the legislation.

Summary of the Respondent’s Position

Mr Peter Flood, Ibec, on behalf of the Respondent, submitted that the Respondent had informed itself of the Complainant’s medical condition by referring her to an Occupational Health Physician. The report from the Occupational Health Physician dated 27^thFebruary 2013 stated that the Complainant’s symptoms were well controlled, he did not recommend that she be moved from the bakery and concluded that her health condition was stable and she would return to work shortly. Mr Flood stated that the Occupational Health Physician was aware of the Complainant’s work environment and saw no reason why she could not return to work. He said it was the Complainant herself who sought to put a restriction on her return to work.

Mr Flood referred to the medical certificate dated 29^thApril 2013 submitted from the Complainant’s GP which made reference to her working “light duties” and supporting her application to transfer to another area as the Complainant found it difficult to stand for eight hours and work in heat given her diagnosis. He contended that this medical evidence did not support the Complainant’s contention that she should be moved from the bakery in order to continue in employment. Mr Flood submitted that the Complainant was only willing to return to work, on her own terms.

Mr Flood contended that given the clear medical evidence from the Occupational Health Physician, reasonable accommodation does not apply in this case and there was no obligation on the Respondent to make special arrangements for her.

The Law

Reasonable Accommodation

Section 16(1) of the Acts provides:

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—
- (a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or
  (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

Section 16(3) of the Act provides: -

(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.

The application of this Section was extensively considered by this Court inNiamh Humphries v Westwood Fitness Club[2004] 15 E.L.R. 296, a case relied upon by both parties in the instant case. That decision was subsequently appealed to the Circuit Court under now repealed provisions of the Act prior to its amendment by the Equality Act 2004 and was upheld in a decision handed down by Judge Dunne (as she then was) on 13^thFebruary 2004.

In its decision this Court held as follows: -

“This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.
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 concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.
In practical terms this will 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 the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.
Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or 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 nominal cost will depend on the size of the organisation and its financial resources.
Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

The Court adopts that reasoning in the instant case.

In a later determination, reported asA Worker v An Employer[2005] ELR 159, this Court expressed the statutory duty on an employer to make reasonable accommodation for a disabled employee as follows:

“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 be accorded 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 (see British Gas Services Ltd v McCaull [2001] I.R.L.R. 60).
The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the determent of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.”

InMarie Daly v Nano Nagle School[2015] IEHC 785, the High Court recently affirmed the consistent construction of Section 16 of the Act in the determinations of this Court and this Court’s interpretation of the scope of the obligation placed by Section 16 of the Act on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Act.

Conclusions of the Court

The Court heard evidence from the Complainant. On behalf of the Respondent the Court heard evidence from Dr. M Occupational Health Physician and Ms W HR Manager.

The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability 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, as held inHK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S[2013] I.R.L.R. 571.

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.

On 29^thApril 2013, the Complainant was certified by her GP as fit to return to work, conditional on the Complainant being restricted to light work in a different area of the store, due to her difficulties in standing for 8 hours and working in heat. She also stated that the Hospital speciality neurology team advised against the Complainant being in stressful situations as it may exacerbate her symptoms. The Respondent’s response was that if she reported for work without being certified as fully fit to perform her current role, then she would be sent home.

This position was confirmed by email dated 3^rdMay 2013, where management confirmed in writing the outcome of a meeting held on the previous day, with the Complainant and her Union representative. It stated that:

“[the Complainant]can return to work if she has been certified as fully fit to perform her current role, if you instruct [the Complainant] to return to work on Saturday 4^thMay’13 without this certification we will have no option but to send her home”.

The Complainant did not return to work because the Respondent did not agree to provide her with alternative duties/location.

The Respondent submitted that the range of duties required of the Complainant was not capable of alteration, the shop was a small shop and there was no other alternative role available for her, therefore it submitted that there was no obligation on it to provide the Complainant with alternative work. It was of the view that unless the Complainant was fully capable of preforming the duties of her employment which involved working in any area of the store to which she was assigned, including the bakery, then there was no job available for her. In her evidence to the Court the Complainant said that the heat from the ovens in the bakery exasperated her condition and that she would have difficulty lifting the heavy baking trays in and out of the ovens.

If so far as the Respondent is seeking to rely on the strict and literal wording of Section16(1) of the Act in defending this claim that position is unsustainable. It is clear from the decision of the High Court inNano Nagle and Marie Daly[2015] IEHC 785 that the duty to provide reasonable accommodation encompasses the reallocation of tasks when needed. While that case is under appeal to the Court of Appeal it remains good law unless and until it is changed on appeal.

The obligation on an employer to consider “reasonable accommodation” may involve making adjustments in the allocation of tasks amongst the workforce so as to assign to a person with a disability those tasks that he or she can perform while allocating tasks beyond their capacity to others. The obligation also carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form abona fidebelief that they are impossible, unreasonable or disproportionate.

As was pointed out by this Court inHumphries v Westwood Fitness Cluband inA Worker v An Employera failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.

The Respondent offered to provide the Complainant with a revised contract in which she would only be required to work in the bakery in exceptional circumstances. That contract provided for a reduction in the Complainant’s working hours and on that account she refused to accept it. However, the Court notes that this offer occurred following the lodging of the Complainant’s complaint under the Act.

In the circumstances, the Court is not satisfied that the Respondent gave adequate consideration to what, if any, adjustments could be made in respect to the Complainant’s work requirements. Therefore, the Court finds that the Respondent failed to discharge its obligation under Section 16 of the Act, as it failed to fully consider whether or not reasonable accommodation could be made for the Complainant’s disability. The Court is satisfied that it simply did not consider the possible options that were available, perhaps had it done so, the Respondent might legitimately have concluded that the Complainant could not be accommodated.

Determination

The Court upholds the Adjudication Officer/Equality Officer’s Decision and accordingly directs the Respondent to pay compensation in the amount of €30,000.00 within42 days of the date of this Determinationfor the aforementioned breach of Section 16 of the Act. Furthermore, as per Section 82(1)(e) of the Acts, the Court orders the Respondent to conduct a review of its policies and procedures in relation to its employment policies to ensure that they are in compliance with the Act with particular reference to the disability ground.

The Decision of the Adjudication Officer/Equality Officer is accordingly upheld and the appeal fails.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
7th October 2016______________________
JKDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.