EDA179

Background

The Appellant was employed by the Respondent in 2003 as a Sales Assistant. She fell ill in July 2013 and on her recovery suffered a hearing impairment involving hearing loss and tinnitus. The Appellant returned to work following her illness on 11^thNovember2013. She supplied a medical certificate to the Respondent stating that she was fit to return to work. That certificate contained no conditions or detail as regards restrictions in terms of capacity on the part of the Appellant to perform her role.

The Appellant sought reduced working hours upon her return to work, initially for a short period, to facilitate her return to work. This request was facilitated by the Respondent. The Appellant sought a series of accommodations over time in relation to working shorter hours and these requests were accommodated by the Respondent on each occasion.


Preliminary issue

The Respondent submitted that many of the events described by the Appellant and alleged to constitute acts of discrimination occurred outside of the time limit of six months prescribed by the Act for the making of a complaint.

The Appellant’s complaint was made to the Equality tribunal on 9^thOctober 2014 and thus the cognisable period for the within complaint is 10^thApril 2014 to 9^thOctober 2014. No application has been made to the Court for extension of that time limit for reasonable cause.
The Appellant did however submit to the Court that the events contended to be acts of discrimination were elements of a continuum of discrimination and thus capable of being considered by the Court as sufficiently connected to acts of discrimination occurring within the time period specified by the Act as to be within the jurisdiction of the Court in the within appeal.

It is settled law that in order for alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint.

This Court considered the matter in EDA1124 County Cork VEC v Ann Hurley wherein it held that

• It is clear for the passage just quoted that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.

The Complainant submitted to the Court that the Respondent failed to provide her with reasonable accommodation in respect of her disability. She contends that a series of events occurred in her workplace between 10^thApril 2014 and 9^thOctober 2014, each of which she contends amounted to a failure by the Respondent to provide her with reasonable accommodation in respect of her disability.

The principal events referred to by the Complainant within the cognisable period can be summarised as follows;

• 
  1. The Respondent’s policy of calling the Appellant over the tannoy system which the Respondent knew or ought reasonably to have known she could not hear

  2. The fact that the Respondent called the Appellant to a meeting in June 2014 with Ms J, a representative of the Respondent. The Appellant asserts that she was forced to terminate the meeting because she could not hear Ms J sufficiently to answer her questions.

  3. That at a meeting with management of the Respondent on 30^thJune 2014 the Appellant experienced management ‘rolling their eyes’ at one another when she informed them that she found it very hard to make out what they were saying.

  4. That by letter of 1^stJuly 2014 the Appellant’s solicitor had written to the Respondent stating that the Appellant would be unable to attend further meetings with the Respondent without the assistance of Deaf / Hear – an organisation providing services to persons with hearing impairment. The Respondent is contended to have refused this request.

  5. That on 25^thSeptember 2014 a member of management of the Respondent spoke so quickly with her face turned away that the Appellant could not make out what she was saying. On the same date the Appellant contends that she was called over the tannoy system.

Summary of the Appellant’s position

The Appellant contends that the Respondent failed to provide reasonable accommodation to the Appellant. In that regard the Appellant contends that the Respondent failed to provide special treatment to the Appellant in the form of (a) assistance at meetings with management, (b) not calling the Appellant over the tannoy system, and (c) speaking slowly and in a quiet room when speaking to the Appellant.

The Appellant contends that, notwithstanding that she was certified fit to return to work on her return in 2013, the Respondent should have provided reasonable accommodation in respect of her disability. The Appellant contends that the Respondent, by providing her with the accommodation requested in respect of reduced working hours, was addressing the Appellant’s recovery from illness. The Appellant contends that this action on the part of the Respondent demonstrated confusion between illness and disability. The Appellant contended that the Respondent erroneously confused fitness to return to work with being at work with a disability requiring reasonable accommodation.

The Appellant contends that the Respondent, in refusing the proposal that attendance by the Appellant at meetings should only take place in the presence of a representative of Deaf / Hear, the Respondent failed to consider other alternatives.

The Appellant contends that the Respondent delayed almost one year after the Appellant’s return to work before referring the Appellant to the ‘company doctor and that this delay was ‘not in compliance with the law as set down’.

Summary of the Respondent’s Position

The Respondent submitted that the Appellant, on her return to work, tendered a medical certificate stating that she was fit to return to work. The Respondent contended that the Appellant, on her return to work, requested an accommodation in the nature of reduced working hours. The Respondent asserted to the Court that this accommodation was afforded to the Appellant and asserted further that at all times subsequent to the Appellant’s return to work and prior to the making of her complaint to the Tribunal she was facilitated with shorter working hours on request.

The Respondent stated that the Appellant requested her immediate manager that she not be called over the tannoy system and that this request was immediately complied with. The Respondent stated that on 1^stJuly 2014 a letter was received from the legal representative of the Appellant requesting that a representative from Deaf / Hear should accompany the Appellant to any meeting with management. The Respondent stated that it had responded to this letter to state that the meetings between management and the Appellant were, for the most part, concerned with matters arising at very short notice such as active customer queries or ‘unders and overs’ on the cash register. Such matters required to be dealt with as immediate matters and could not await the presence of an external party. The Respondent stated that they had been advised by Deaf / Hear that notice would be required by them of any requirement to have a Representative attend at a meeting on the Respondent’s premises.

The Respondent stated that upon receipt of a request for support by Deaf / Hear from the Appellant’s legal representative the Respondent had arranged for the Appellant to be assessed by its medical adviser. The Respondent asserted to the Court that this assessment had advised that no special supports were required for the Appellant in her engagements with management but that the meetings should take place in a quiet room. The Respondent stated that the advices were fully complied with.

The Respondent stated to the Court that on various occasions the Respondent’s management met with the Appellant to discuss her working hours and that the Appellant had raised certain matters including her challenge in taking medication and the Respondent contended that on each occasion the Appellant had been provided with the accommodations and facilities sought.

The Respondent stated to the Court that its managers took care to speak slowly to the Appellant and that she had been accommodated on a till which was located in a quieter area.

The Respondent asserted to the Court that notwithstanding the engagements with the Appellant there was no issue arising as regards the Appellant’s performance of her role or duties and in particular no issue had arisen or been observed which gave rise to a concern as regards the Appellant’s competence or capability to perform her work. The Respondent asserted to the Court that the Appellant at all material times demonstrated full capability and competence in her job.

The Law

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.

• (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.

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)”.

Conclusions of the Court

The Court heard evidence from the Appellant. On behalf of the Respondent the Court heard evidence from Mr K (Grocery manager), Ms H (Checkout Manager) and Ms H (HR Manager).

It is clear to the Court that numerous interactions took place between the Appellant and the Respondent following her return to work and that various adjustments to her working hours and arrangements derived from those engagements. It is also clear to the Court that when the Appellant’s legal adviser made a request for support from Deaf / Hear the Respondent sought and secured an appropriate medical assessment. That assessment did not support the proposal for external expertise to be in attendance at meetings between management and the Appellant.

In November 2014, the Complainant was certified by her GP as fit to return to work. No conditions or special requirements were attached to that certification. The Respondent has asserted that following the Appellant’s return to work there were no issues or concerns as regards her competence, performance or output arising from or connected with her disability or for any other reason not apparently connected with her disability. The Appellant has not put before the Court any evidence of incapacity on her part to carry out the duties and functions of her role as a Sales Assistant in a fully competent manner.

The obligation on an employer to afford reasonable accommodation arises from the obligation to ensure that a person is not discriminated against on grounds of their disability. Specifically the Act at section 16(3) provides as follows;

• (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.