Adjudication Officer/Equality Officer’s
Decision No: DEC-E2017-060
Parties
A Teacher
(Represented by Citizen’s Information – National Advocacy Service for
People with Disabilities)
-v-
A National School
(Represented by Mason Hayes and Curran – Solicitors)
File No: EE/2012/006
Date of issue: 4 August, 2017
1. DISPUTE
This dispute involves a claim by Ms. Y (“the complainant”) that a named National School (“the respondent”) - (i) dismissed her in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts and (ii) failed to afford her reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011.
2. BACKGROUND
2.1 The complainant commenced employment with the respondent as an Assistant Teacher in January, 2008 and initially taught as a Resource Teacher. She was appointed to mainstream class teaching in September, 2010 and continued in this role until her employment terminated in July, 2011. The complainant asserts that the respondent was aware she suffered from a disability in terms of section 2 of the Employment Equality Acts, 1998-2011 and that it failed in its obligation to afford her reasonable accommodation pursuant to section 16 of those Acts. She further asserts that this alleged behaviour impacted on her to such an extent that she had no option but to resign her position in July, 2011 and submits that this amounts to constructive discriminatory dismissal of her on grounds of disability contrary to the Acts. The respondent rejects these assertions in the entirety stating that it treated her with care and compassion at all times and that she resigned her position of her own volition on 19 July, 2011 when she made an application for early retirement under a scheme operated at that time by (the then) Department of Education and Skills.
2.2 The complainant referred a complaint under the Employment Equality Acts, 1998-2011 to the Equality Tribunal on 21 December, 2011. In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer - for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. Pursuant to section 40(3)(b) of the Workplace Relations Act, 2015 I became an Adjudication Officer of the Workplace Relations Commission on 1 October, 2015, although this did not alter the delegation of the complaint to me in any way. My investigation of the complaint commenced on 8 April, 2014 - the date the complaint was delegated to me. Submissions were filed and exchanged and a Hearing on the complaint took place on 17June, 2014. A number of issues required further correspondence between the parties and the Equality Officer for several months subsequent to the Hearing.
3. SUMMARY OF COMPLAINANT’S CASE
3.1 The complainant commenced employment with the respondent as an Assistant Teacher in January, 2008 and initially taught as a Resource Teacher. She was appointed to mainstream class teaching in September, 2010 and continued in this role until her employment terminated in July, 2011. In the course of the Hearing the complainant stated that her role as Assistant Teacher comprised her providing extra tuition to two pupils with special needs (they both had a Special Needs Assistant (‘SNA’) accompany them) and assisting a colleague for approximately one hour per day. She added that her role in mainstream teaching entailed the full range of teaching functions to approximately thirty pupils in 3rd/4th class, although she had some support when teaching English and Maths for a few months. The complainant states that she was diagnosed as suffering from depression in 1995 and that in 2010 she was diagnosed as suffering from schizophrenia. She contends that the respondent was aware of both these conditions from an early date.
3.2 The complainant states that she was absent from work from October, 2008 to March, 2009 due to depression which necessitated a period of hospitalisation under specialist care. She adds that she attended Dr. Z – the respondent’s Occupational Specialist on 12 February, 2009 and accepts that she was not considered as fit to resume duties at that time. She adds that she underwent further examination by her Consultant Psychiatrist shortly thereafter and was considered fit for work. She states that she returned to work in March, 2009 and asserts that the respondent’s Principal (Mr. A) saw her as a liability and took issue with her about a number of matters. She adds that he disagreed with how she interacted with an SNA, the use of technology as a teaching aid and highlighed to her the areas/topics she needed to focus on when teaching the pupils. She rejects the respondent’s assertion that staff had raised concerns with the Principal about her behaviour and states that she did not consider the actions of Mr. A to amount to support of her as asserted by the respondent. In the course of the Hearing the complainant stated that there were no further issues between then and the end of term in July, 2010.
3.3 The complainant states that she was appointed to mainstream class teaching in September, 2010 and that her role entailed the full range of teaching functions to approximately thirty pupils in 3rd/4th class, although a colleague took 3rd class pupils for English and Maths. Mr. A took the children for PE and another teacher took the class for music. In the course of the Hearing the confirmed that she had written a note to the respondent on 16 November, 2010 acknowledging the support she was receiving; that this support was making the role much easier and that she “had not thought she would enjoy being back in the classroom so much”.
3.4 The complainant states that she suffered a relapse of her mental health condition on 19 November, 2010 which resulted in her having to leave the school that day and ultimately required a further spell in hospital under specialist medical care. The complainant states that she attended Dr. Z on 11 January, 2011 for assessment on her fitness to resume duties. She adds that whilst Dr. Z did not consider her fit to return to work at that juncture he indicated he would seek details from her GP and Consultant Psychiatrist (Dr. X) and review the matter. The complainant states that both her GP and Dr. X furnished reports on their respective assessment of the complainant and states that her GP was of the view that that she (the complainant) had “an approved insight into her condition and the need to continue medication long-term” and that it would be beneficial for her to return to work “ideally as a Resource Teacher” with “adequate supervision”. The complainant adds that Dr. X also expressed the opinion that she (the complainant) had “gained a good insight into her illness at the level of the need for medication and her diagnosis”. She states that Dr. Z subsequently proposed that she be assessed by an independent (third party) Consultant Psychiatrist (Dr. Q) to assess her fitness to resume duties and that the respondent refused to meet the cost of the consultation. In the course of the Hearing the complainant confirmed that she had never attended Dr. Q and could offer no explanation why she did not meet the cost herself. She adds, moreover, that the respondent made no assessment of what level of supervision would be necessary to accommodate her return to work, as suggested by her GP.
3.5 The complainant states that she remained out of work during this period and requested her GP to write to Dr. Z on 16 May, 2011 enquiring about the final report on her fitness to return to work. She adds that Dr. Z responded on 8 June, 2011 advising that he remained of the view that she was unfit to resume duty and expressed the view that early retirement on grounds of ill-health would be an appropriate way forward for the complainant by enabling her focus on her wellbeing. It is submitted on behalf of the complainant that this opinion is flawed insofar as it was reached without having knowledge of the full facts of the complainant’s ability to resume duty. It is further submitted that it does not explore, to any reasonable extent, all of the options available to the respondent to enable the complainant return to work with suitable accommodations, as suggested by her GP and Consultant Psychiatrist. In summary, it is submitted on behalf of the complainant that the actions of the respondent fall well below those set out by the Labour Court in A Health and Fitness Club v A Worker[1]and consequently the respondent has failed to afford the complainant reasonable accommodation in accordance with section 16 of the Employment Equality Acts, 1998-2011.
3.6 The complainant states that she wrote to the respondent on 16 May, 2011 advising that she was seeking early retirement. In the course of the Hearing the complainant confirmed that this was under a Scheme administered by the Department of Education and Skills and that she had made the initial enquiry of that Department. She added that she forwarded the relevant form to the respondent and that it completed same and returned it to her. The complainant added that she returned this form to the Department of Education and Skills indicating which of the options she wished to avail of. The complainant further stated that she believed her correspondence with that Department was merely an enquiry as regards the possibility of availing of the scheme and was not a formal application. She adds that the respondent wrote to her on 8 June, 2016 setting out what it believed were the options available to her. She states that her understanding of this was that she could take unpaid leave or retire. The complainant states that she wrote to the respondent on 14 June, 2016 seeking clarification of her employment with it, in light of the medical assessment process. She adds that the respondent replied refusing to inform her of its decision; advising that the final medical report would be sent to her by Dr. Z; stating that the respondent noted from her letter of 16 May, 2011 that she was seeking early retirement and sought an update of that application.
3.7 The complainant states her GP advised her that Dr. Z had written to her on 8 June, 2011 advising that he (Dr. Z) had reached his final decision as regards her fitness to return to work. In the course of the Hearing the complainant stated that her GP’s interpretation of that correspondence was she was unfit for duty and that she had to retire. She adds that she wrote to the Department of Education and Skills on 15 June, 2011seeking advice on the next step she needed to take. The complainant states that the next she heard was an email from Mr. A advising that the respondent had been advised her application for early retirement had been processed and concluded successfully and requested that in the circumstances she might submit her letter of resignation as soon as possible. The complainant states that she furnished her letter of resignation (with immediate effect) on 19 July, 2011. In the course of the Hearing she the complainant stated that at some stage subsequent to 16 May, 2011 (she was unable to say exactly when) she asked her trade union to intervene on her behalf with the Department of Education and Skills in terms of withdrawing her application and the Department advised that it was too late to do so. It is submitted on behalf of the complainant that the respondent left her with no alternative other than to comply with the direction to furnish her resignation in writing given its actions and behavior towards her in the months immediately preceding the termination of her employment. It is further submitted that these actions/behavior was unlawful in terms of its obligation to afford the respondent reasonable accommodation pursuant to section 16 of the Employment Equality Acts, 1998-2011 and consequently she was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts.
4 SUMMARY OF RESPONDENT’S CASE
4.1 The respondent rejects the complainant’s allegations in their entirety. It accepts the chronology of employment set out by the complainant and the roles and functions detailed by her. In the course of the Hearing the respondent’s Principal (Mr. A) confirmed that he was aware the complainant suffered from depression from the outset of her employment but could not recall if he was advised she had been diagnosed with schizophrenia. The respondent states that the complainant commenced a period of sick leave in March, 2008 which lasted until the end of the academic year 2008. It adds that she resumed duty in September, 2008 but shortly thereafter commenced another period of sick leave which necessitated specialist care in hospital. The respondent adds that in February, 2009 the complainant attended its Occupational Specialist (at the respondent’s request) in accordance with the (then) Department of Education and Science’s Fitness to Practice requirements and that whilst she was not certified as fit to resume duty at that stage, she was considered so subsequently and returned to work the following month. The Principal (Mr. A) states that following her return some of the complainant’s colleagues expressed concern to him about the complainant’s behaviour. He states that in an effort to assist her he spoke with her and suggested that she work more cohesively with the SNA she had contact with and to use the technology available in delivery of her lessons. In the course of the Hearing Mr. A rejected the complainant’s assertion that he saw her as a liability and stated that he was genuinely trying to make things better for her.
4.2 The respondent states that the complainant was due to be placed on a redeployment panel at the end of the academic year in July, 2010 but due to another teacher taking up a post elsewhere it was no longer necessary for the complainant to be redeployed. It adds that the complainant was initially assigned duties as a Learning Support Teacher which was shared with another local school but a colleague challenged this appointment and on review by the Board of Management (on the advice of the Department of Education and Science) the initial assignment was reversed and the complainant was assigned duties in mainstream teaching. The respondent that her role in entailed the full range of teaching functions to approximately thirty pupils in 3rd/4th class, although a colleague took 3rd class pupils for English and Math, the Principal took the children for PE and another teacher took the class for music. The respondent argues that this demonstrates its commitment to support the complaint in real terms on foot of her disability. It adds that the complainant was clearly happy with the arrangement as she wrote to the respondent on 16 November, 2010 acknowledging the support she was receiving; adding that this support was making the role much easier and that she had not thought she would enjoy being back in the classroom so much. The respondent adds that it provided support notwithstanding the fact that its Occupational Specialist had assessed the complainant on 7 October, 2010 and declared her fit for duty.
4.3 The respondent states that the complaint arrived late for work on 19 November, 2010 and during the course of the day she was observed by her colleagues as confused and disorientated. The respondent states that Mr. A met with her at 3pm that afternoon and she agreed to seek medical assistance. The respondent (Mr. A) states that he met with the complainant on 23 November, 2010 and she was subsequently hospitalised. The respondent states that the complainant attended Dr. Z for assessment on 11 January, 2011 and he considered the complainant unfit for duty but he undertook to seek more information from her GP and Consultant Psychiatrist (Dr. X) and review the matter. The respondent further states that Dr. Z wrote to Dr. X and the complainant’s GP on 21 January, 2011 inviting their comments on the complainant’s mental health issues so as he could make an informed decision on her fitness to practice. The respondent adds that Dr. Z received a response from the complainant’s GP on 27 January, 2011 wherein her GP states that provided there was adequate supervision, she was of the view that no children in her (the complainant’s) care would be at risk of neglect.
4.4 The respondent states that Dr. Z wrote to the Board of Management on 11 February, 2011 setting out the comments of the complainant’s GP and sought the views of the respondent requesting that it reflect on the degree to which the respondent could provide the supervision suggested by her GP. The respondent states that the Board of Management met on 7 March, 2011 and decided that it would be impossible to provide the level of supervision envisaged. Moreover there was no Resource Teaching role available at that time. In the course of the Hearing Mr. A stated that the Board of Management considered that the only person within the school who could supervise a member of staff was him. He added that this was a role governed by statute. He added that given his role as Principal also required him to teach twenty-one children, two of whom had special needs, the level of supervision envisaged could not be provided by him.
4.5 The respondent states that Dr. X wrote to Dr. Z on 16 February, 2011 wherein Dr. X stated that the complainant had gained a good insight into her illness at the level of the need for medication but states that Dr. X offered no opinion on whether or not the complainant was fit for duty. The respondent states that Dr. Z wrote to the Board of Management on 29 March, 2011 proposing that in view of the differences in opinion between him and the complainant’s medical advisors, the complainant should be referred to Dr. Q – an independent Consultant Psychiatrist. The respondent states that the Board of Management met to discuss the contents of this letter and decided that the decision on whether or not to refer the complainant to this independent Consultant and the cost associated with same, should be a matter for the organisation which engaged Dr. Z (the Department of Education and Science) as Dr. Z was charged with determining the complainant’s fitness to practice and to advise the respondent on same. The respondent states that Dr. Z wrote to the Board of Management on 10 May, 2011 wherein he states that he has given considerable time to the issue of the complainant’s fitness for work and he acknowledged the opinions of her medical advisors but he was still of the opinion that she was unfit for duty. The respondent states that whilst it is not obliged to accept Dr. Z’s opinion, given that he was the appointed occupational health service by the Department of Education and Science, it would need to be able to justify the basis for any departure or non-acceptance of such an opinion. It is submitted on behalf of the complainant that it did not fail to afford the complainant reasonable accommodation in accordance with section 16 of the Acts. It is further submitted that the respondent obtained three separate medical assessments of her fitness to resume duty and the opinion of the Occupational Health Specialist (Dr. Z), having given the complainant’s medical advisors the opportunity to participate fully in that process and taken those opinions into consideration, was that she was fit to resume. It further submits that notwithstanding this, it considered the opinion of Dr. Z issued on 11 February, 2011 and was not in a position to accommodate the complainant along the lines indicated. In summary, the respondent argues that it has complied with the requirements set out in A Health and Fitness Club v An Employee[2] and this element of the complaint should fail.
4.6 The respondent rejects the complainant’s assertion that she was dismissed, stating that she resigned/retired of her own volition. The respondent states that the complainant wrote to it on 16 May, 2011 advising that she was seeking early retirement under a Department of Education and Science Cost Neutral Scheme and enclosing an application for completion by the respondent. Mr. A states that he completed the form and returned it to the complainant as he considered the respondent was required to do so and it was an administrative requirement for the Department of Education and Science to process the application. The respondent (Mr. A) states that at this time the complainant was on a period of unpaid sick leave and in an effort to be of further assistance to her (by providing her with full information) he wrote to the complainant on 8 June, 2011 (in response to her letter of 2 June, 2011 requesting an extension of that unpaid leave until the end of that month) advising that under the relevant Circulars she had an had an entitlement of two years’ unpaid sick leave. The respondent states that Dr. Z wrote to the complainant’s GP on 8 June, 2011 (in response to the GP’s letter of 16 May, 2011) wherein he advises that in his opinion she is unfit to resume duty and that his personal belief was that the in the interest of maintaining the complainant’s wellbeing she might consider early retirement on grounds of ill-health.
4.7 In the course of the Hearing Mr. A stated that in early July, 2011 he was informed by the Pensions Section of the Department of Education and Science that the complainant’s application had been processed and was confirmed. He added that the Board of Management formed the view that the complainant should be requested to submit a formal letter of resignation. Mr. A further stated that whilst not essential to fill the complainant’s vacancy the Board of Management was eager to minimise any subsequent administrative problems with the Department of Education and Science. He added that was the reason why he issued the email to the complainant requesting confirmation of her resignation in writing. The complainant furnished same on 21 July, 2011. It is submitted on behalf of the respondent that it had no role in the termination of her employment. The only role it discharged was an administrative one and it did so promptly at the request of the complainant. It adds that at all times communication on the termination of her employment was between her and the Department of Education and Science and it was open to her to defer or postpone her application for the Early Retirement Scheme but she did not do so. The respondent adds that it always hoped her condition would stabilise and she could continue working with the respondent. This did not happen as the complainant retired of her own volition.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issues for decision by me are whether or not the respondent (i) failed to afford the complainant reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011 and (ii) dismissed the complainant in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.
5.2 Section 85A of the Employment Equality Acts 1998 - 2011 (“the Acts”) 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 (now WRC) 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 Equality Officer/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.
5.3 It is clear that the complainant suffered from depression from the outset of her employment and that the respondent was aware of this. It is also well established that depression is a disability for the purposes of section 2 of the Acts. I shall look first at the allegation that the respondent failed to afford the complainant with reasonable accommodation pursuant to section 16 of the Acts. That section provides as follows –
“(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 …..if the individual …
(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…..
(3)(a) For the purpose of this Act a person who has a disability is fully competent to undertake, and fully competent 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 that 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 ……..
unless the measure would impose a disproportionate burden on the employer.
5.4 It is well established in the caselaw of this Commission (its predecessor the Equality Tribunal) and the Labour Court that section 16 of the Acts can provide a complete defence for a respondent to an allegation of discrimination on the disability ground if it can be shown that the respondent formed the bona fide belief that the complainant is not fully capable, within the meaning of that section, of performing their duties. In A Health and Fitness Club v A Worker[3] the Labour Court stated that before coming to that view, the employer would be required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity. The Court expanded on this by stating that in practical terms this would entail a two stage enquiry – the first looking at the factual position regarding the employees’ capability which would involve looking at the medical evidence available to the employer (giving the employee the opportunity to submit his/her own medical evidence) and the second a consideration of what, if any, appropriate measure it can afford the employee to render him/her fully capable to perform the duties of the post.
5.5 It is clear that the complainant’s attendance at work was impacted adversely from the outset of her employment with the respondent as a result of her condition. However, things appeared to improve following her return to work in March, 2009 and there does not appear to be any issues between then and end of the academic year in July, 2010. I note that the complainant was assigned duties in a mainstream teaching role in September, 2010 and that whilst this role entailed the full range of teaching functions to approximately thirty pupils in 3rd/4th class, certain duties were carried out by colleagues. I am satisfied that this was a genuine and tangible effort on the part of the respondent to support the complainant in her role. It is clear that this had the desired effect when you read the complainant’s letter of 16 November, 2010 – wherein she acknowledges the support given by Mr. A and her colleagues and states she is enjoying teaching and she “had not thought that I would enjoy being back in the classroom so much.”.
5.6 It is common case that the complainant suffered a relapse of her mental health condition on 19 November, 2010 which resulted in her having to leave the school that day and ultimately required a further spell in hospital under specialist medical care. It is also common case that the complainant attended Dr. Z on 11 January, 2011 for assessment and that he certified her unfit for work, although Dr. Z indicated that he would seek comments from the complainant’s GP and Consultant Psychiatrist (Dr. X) and review the matter. I am satisfied that Dr. Z did so on 21 January, 2011, expressing his concerns about the complainant’s fitness to resume duty and that he received a response from the complainant’s GP on 27 January, 2011. This correspondence was furnished to me in the course of my investigation. It states that provided there was adequate supervision, the complainant’s GP was of the view that no children in her (the complainant’s) care would be at risk of neglect. Dr. Z wrote to the Board of Management on 11 February, 2011 setting out the comments of the complainant’s GP and sought the views of the respondent on the degree to which the respondent could provide the supervision suggested by her GP. The respondent’s Board of Management met on 7 March, 2011 and decided that it would be impossible to provide the level of supervision envisaged. It considered that the only person within the school who could supervise a member of staff was the Principal and as he had a teaching role (in addition to his duties as Principal) teaching twenty-one children, two of whom had special needs, the level of supervision envisaged could not be provided by him. This was communicated to the Dr. Z on 8 March, 2011. I am satisfied that this was a genuine evaluation of the accommodation which the respondent could afford the complainant to assist her return to work.
5.7 The complainant’s Consultant Psychiatrist (Dr. X) wrote to Dr. Z on 16 February, 2011. This correspondence was also opened to me in the course of my investigation. I have examined this document and it appears to set out a chronological history of the complainant’s condition and expresses the view that she (the complainant) had gained a good insight into her illness at the level of the need for medication and support. However, it did not offer any opinion on whether or not the complainant was fit for duty. Dr. Z wrote to the respondent’s Board of Management on 29 March, 2011 relaying the comments/opinion offered by the complainant’s GP and Dr. X, and having regard to the respondent’s letter to him of 8 March, 2011he suggested that the complainant should be referred to Dr. Q – an independent Consultant Psychiatrist. It is noteworthy that in this letter Dr. Z states that his opinion on the complainant’s fitness to resume duty remains unchanged. This opinion was offered at a time when Dr. Z was in receipt of the views of both the complainant’s medical advisors. It is clear that the respondent ‘s Board of Management met to discuss the contents of this letter and decided that the decision on whether or not to refer the complainant to this independent Consultant and the cost associated with same, should be a matter for the organisation which engaged Dr. Z – the Department of Education and Science. Ultimately, this assessment by Dr. Q did not occur. The complainant’s representative argues that this undermines the medical opinion of Dr. Z as there was a lacuna in the information upon which he reached that opinion. I do not accept that argument. Whilst it may have been prudent to seek an independent assessment, I am satisfied that Dr. Z was perfectly entitled to reach an opinion without it. He was an experienced and qualified medical practitioner who was a specialist in occupational medicine. Moreover, the failure to acquire that opinion does not in my view, in and of itself, render the process flawed. Finally, it was always open to the complainant to arrange for such an assessment and she decided not to do so.
5.8 Dr. Z wrote to the respondent’s Board of Management on 10 May, 2011 wherein he (i) states that he has given considerable time to the issue of the complainant’s fitness for work and (ii) acknowledges the opinions of her medical advisors but indicates he was still of the opinion that she was unfit for duty. I note that the respondent states whilst it is not obliged to accept Dr. Z’s opinion, given that the organisation he worked for was the appointed occupational health service by the Department of Education and Science, it would need to be able to justify the basis for any departure or non-acceptance of such an opinion. The respondent is required to apply the Department of Education and Science’s Guide on “Medical Fitness to Teach”. Paragraph 5.2 of this Guide states that a teacher should be referred for assessment in certain circumstances. These include long-term absence and where concerns arise regarding performance of duties as a result of health factors. I am satisfied that the respondent was entitled to refer the complainant to Dr. Z pursuant to the Guide. Dr. Z made an initial assessment and there gave the complainant’s medical advisors (Dr. X and her GP) an opportunity to comment on this initial assessment. I am satisfied that this approach is entirely consistent with the first stage of an enquiry as set out by the Labour Court in A Health and Fitness Club v A Worker[4]. Dr. Z was, as previously stated, perfectly entitled to reach the conclusion he did. The respondent is also perfectly entitled to accept such an opinion. Indeed, I am of the view that any departure from a specialist medical opinion would be a rash and ill-advised course of action for an employer. I am further satisfied that the respondent’s consideration of the medical opinion furnished by Dr. Z and what, if any, appropriate measures it could afford the complainant to return to work, is also consistent with the second limb of the enquiry process advocated by the Labour Court in A Health and Fitness Club v A Worker[5]. In light of my comments in the foregoing paragraphs I find that the respondent did not fail to afford the complainant reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2011 and this element of her complaint cannot succeed.
5.9 I shall now examine the second element of the complainant’s complaint – that she was dismissed in circumstances amounting to discrimination on grounds of disability contrary to the Acts. The respondent rejects this assertion – stating that the complainant retired/resigned of her own volition. It is common case that the complainant was on a period of unpaid sick leave immediately prior to the cessation of her employment. The complainant states that she wrote to the respondent on 16 May, 2011 advising that she was seeking early retirement under a Scheme administered by the Department of Education and Skills and that she had made the initial enquiry of that Department. This correspondence was accompanied by the relevant application form, which was completed by the respondent and returned it to her. The complainant stated that she believed her correspondence with the Department of Education and Science was merely an enquiry as regards the possibility of availing of the scheme and was not a formal application. That is as may be. However, the complainant never clarified the situation with the Department. Her inactivity in this regard and the subsequent outcome cannot be attributed to the respondent. I note that on that same day (16 May, 2011) the complainant’s GP wrote to Dr. Z seeking clarification of his opinion on the complainant’s fitness to resume duty. There are several pieces of direct correspondence between the complainant and the respondent in early June, 2010. However, none of this correspondence contradicts/amends the clear view expressed by the complainant in her letter of 16 May, 2011 that she was seeking early retirement. I am therefore satisfied that the respondent was entitled to rely on the contents of the complainant’s letter of 16 May, 2011.
5.10 The respondent wrote to the complainant on 23 June, 2011 seeking conformation of the status of the complainant’s application to the Department of Education and Science. It received no response. I am satisfied that by this stage the complainant had received Dr. Z’s letter of 8 June, 2011 advising that he remained of the view that she was unfit to resume duty and expressed the view that early retirement on grounds of ill-health would be an appropriate way forward for the complainant by enabling her focus on her wellbeing. It is inexplicable why the complainant did not reply to the respondent’s letter of 23 June, 2011. I am of the view however, that Dr. Z’s letter reinforced her earlier decision to seek early retirement. It is noteworthy that the complainant did not withdraw or at the least delay her application to the Department of Education and Science at any stage during this period and the matter was processed in the same manner as other applications. In early July, 2011 the respondent was informed by the Department of Education and Science that the complainant’s application for retirement under the relevant Scheme had been processed and concluded successfully. The respondent states that it sought written confirmation of her resignation from the respondent. I am satisfied that this was a reasonable course of action for the respondent to adopt so as to avoid any subsequent issue or delay with the Department of Education and Science in filling the complainant’s vacancy.
5.11 It is well established law that “dismissal” of an employee includes (i) the unilateral termination of a person’s contact of employment by an employer and (ii) the termination of a contract of employment by the employee because of the unreasonable conduct of the employer. In the instant case, having carefully considered the evidence adduced by the parties I am satisfied that the respondent did not terminate the complainant’s employment. Indeed it was never involved with the process at any stage. It is clear to me that the complainant brought her own contract of employment to an end. Consequently, the only avenue open to her, in terms of her allegation that she was dismissed, is to satisfy me that the actions of the respondent were such that she was entitled to terminate her employment. She has not advanced a scintilla of evidence to enable me reach such a conclusion. I am satisfied that the complainant’s employment ceased on foot of her application to avail of retirement under a scheme administered by the Department of Education and Science. The respondent merely co-operated with the complainant’s application at every step it was requested to. Consequently, I find that she resigned/retired of her own volition and this element of her complaint fails.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find that the complainant has failed to establish a prima facie case that the respondent –
(i) failed to provide her with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998 – 2011 and
(ii) dismissed her in circumstances amounting to discrimination on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 - 2011 and contrary to section 8 of those Acts.
and her complaint fails in its entirety
_______________________________________
Vivian Jackson
Adjudication Officer/Equality Officer
4 August, 2017
Footnotes
[1] EDA 037
[2] EED037
[3] EED 037
[4] EED 037
[5] Ibid.