ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008141

Complaints:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00010831-001 13/04/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00010831-002 13/04/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00010831-003 13/04/2017   Date of Adjudication Hearing: 17/10/2017 Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 27 of the Organisation of Working Time Act 1997, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Background:

The complainant contends that she was discriminated against by the respondent employer on grounds of disability, that the employer failed to provide reasonable accommodation and that she was discriminatorily dismissed.   The complainant further submits that she did not receive her entitlements to payment for annual leave accrued and public holidays on cessation of her employment.

Summary of Complainant’s Case:

The complainant was employed by the respondent from 15th November 2003 to 24th October 2016. At the time of the termination of her employment she had held the position of Assistant Manager on an annual salary of €35,700. She was on sick leave since 9th June 2014. She had suffered from stress and anxiety, compounded by the death of her mother in May 2014.   During her sick leave period the complainant was met with a number of times by the Store Manager. She also attended Occupational Health Doctor and underwent a clinical examination which showed significant anxiety and depression.   On a number of occasions when the Store Manager met with the complainant, she (the Store Manager) was mainly enquiring on what date would the complainant be able to return to work. The complainant would reply that she did not know. At one point the complainant asked about redundancy but was told that was not on offer. There was also some brief discussions about a phased return to work but this also was not responded to in any positive way. The matter was handed over to the Regional Manager who continued to meet with the complainant during 2015 and 2016, on almost a monthly basis. On 22nd August 2017 the complainant met with the Regional Manager who had advised her that he would be discussing her current medical condition and seeking a definitive date for her return to work, and that she should bring along any medical reports to that meeting. At the meeting, the complainant gave to the Manager a letter from her G.P. which outlined her medical condition in some detail, including the fact that she suffered profound mental health issues in the past and that while she had improved markedly she continues to suffer with significant physical conditions which he suspected may be connected to a condition called Lupus.   She was, he said, being referred for specialist medical opinion and “any potential return to work will depend on the outcome of this specialist visit”.   The Manager informed the complainant that he had given her plenty of time to give a date for return to work, and that her contract would be terminated.   Another meeting was held on 12th September 2017 and the complainant provided more information from her Doctor including a letter seeking an early specialist appointment. The Manager took the letters, left the room, and after about 10 minutes came back and told the complainant her contract was being terminated. When the complainant got upset, he marched her in a distressed state to the door.     On 27th September 2017, the complainant received a letter terminating her employment. It is submitted that the complainant suffers a disability within the meaning of Section 2 of the Act and that she has been discriminated against as defined in Section 6 of the Act (“the disability ground”). The complainant suffered from “Lupus Profundis” and “Longstanding mixed anxiety / depressive disorder”.   The respondent was aware of the complainant’s disabilities.   It is argued that the respondent failed to comply with its obligations to provide appropriate measures as derived from Article 5 of the European Directive 2000/78 and enshrined in Irish Law under Section 16 (3) of the Acts. It is argued that the respondent did not adopt any measures to provide “reasonable accommodation” and failed to consider all of the options that might have been available to accommodate the complainant’s return to her employment.   It is argued that the duty placed on an employer by Section 16 (3) includes, by implication, a requirement to make proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee.   The respondent in this case would not wait until the specialist report was received. CA-00010831-002 The complainant was out sick from work due to illness. It is argued that she accrued at least 5 weeks annual leave which amounts to €3,432. She received just €663.54 in her final pay. CA-00010831-003 The complainant did not receive her entitlements to Public Holidays.

Summary of Respondent’s Case:

The complainant commenced a period of long term sickness absence on 9 June 2014 and remained absent from work until her employment was terminated on 24 October 2016. During the more than two year period, she was met on a monthly basis by her Managers to ascertain when if she could return to work.   In the course of the two years and having considered the medical letters, it was clear to the respondent that the complainant’s condition had not improved.   In fact her condition appeared to be worsening over time with additional serious and debilitating conditions emerging.    While Lupus had been included on one of the complainant’s medical certificates sated 18 April 2016, the complainant had never mentioned it during any of her meetings with the Regional Manager and it did not feature on any other medical certificate during the complainant’s 27 month absence from work. It now appeared that this new issue had become so serious as to become a further impediment to the complainant’s recovery and return to work. Having met with the complainant on seven occasions over the previous fourteen months it was also clear to the Regional Manager that the complainant continued to experience significant anxiety when visiting, and being physically present in the store. The complainant acknowledged this herself.   In these circumstances, there appeared to be no reality to the complainant returning to work in the near future if at all.   The complainant was advised that her employment would come to an end on 24 October 2016 taking into account her notice entitlement. The complainant was advised of her right to appeal but chose not to invoke this right. Legal submissions – Discriminatory Dismissal and Reasonable Accommodation It is common case that the complainant was unfit to perform the duties for which she was employed. Section 16 of the Employment Equality Act 1998 provides that: “16. – (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.… It is argued that in this case, the complainant could not perform the duties attached to the position of Assistant Manager as a result of her various illnesses, from 9 June 2014 onwards. Over the course of the complainant’s absence, which lasted more than two years, the respondent met with the complainant at regular intervals to discuss her illnesses and organised an appointment with the company doctor for an assessment of her condition and her potential for a return to work. It is argued that the respondent in this case complied with Section 16 (3) of the Act as interpreted by the Labour Court in Humphreys v Westwood Fitness Club [2004] E.L.R. 296, 300.   The respondent was in full possession of all the material facts concerning the complainant’s condition, had meetings with the complainant during which she was advised that the respondent could not hold her position open indefinitely, and the complainant was allowed the opportunity to influence the employer’s decision.     Had the complainant indicated that she had recovered to such an extent that a return to work was a viable prospect, the respondent would have been more than willing to accommodate her in any way that it could. The respondent’s policy is to accommodate where possible, employees returning to work from long term sick leave. Examples of the measures routinely provided by the respondent to such employees, by way of reasonable accommodation, include a phased return to work, a return to work on restricted duties and the allocation of particular shifts.   In these circumstances the complainant’s complaint that she was discriminated against on the ground of her disability is ill-founded. In relation to the claims under the Organisation of Working Time Act 1997, a payment in respect of any accrued but untaken holiday leave existing as at the date of dismissal was made to the complainant on termination of her employment.   Therefore the complaint is ill-founded.

Findings and Conclusions:

CA-00010831-001 There is no dispute between the parties that the complainant suffers a disability consistent with the definition contained in Section 2 (1) of the Acts. The respondent relies on Section 16 of the Act which provides: “16. – (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.…(3)(a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.” The respondent quotes the Labour Court in Humphreys v Westwood Fitness Club [2004] E.L.R. 296, 300 in support of its reliance on Section 16 as a complete defence to the claim of discrimination.      In that case the Court found that in practical terms a two stage enquiry should take place, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment and its likely duration.   Secondly, if it is apparent that the employee is not fully capable Section 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, and the employee concerned should be allowed full opportunity to participate at each level and present medical evidence.                 In this instant case, I find that the respondent did look at the factual position concerning the complainant’s impairment and likely duration.   The respondent met with the complainant regularly and received medical evidence and reports, with the exception of the final Specialist report which issued after the dismissal. I find that the respondent did not consider any special treatment or facilities which may have rendered the complainant fully capable.   In coming to this conclusion, I am mindful of the High Court judgement in the case of Nano Nagle School v Marie Daly [2015] IEHC 785, in which the Court affirmed the decision of the Labour Court in the case of a respondent who had failed to consider potential options of reasonable accommodation.  I find that in this instant case, no evidence was presented to me to show that the respondent made any attempts to provide any special treatment or facilities for the complainant. Obviously there is no actual obligation on the employer to produce a successful outcome to enquiries as to alternative duties or such similar reasonable accommodation. However, a bona fide attempt must be made source some alternatives before terminating the complainant’s employment.     I did not see any evidence of enquiries for example, from the local management to Head Office or Human Resources.                                                                                   I find that by failing to consider or evaluate potential options of reasonable accommodation the respondent has not complied with the responsibilities placed on it by the Act and I uphold the complainant’s complaints that the respondent failed to consider fully the issue of reasonable accommodation and that she was discriminatorily dismissed from her employment. CA-00010831-002 Correspondence received post hearing from the parties indicate that the complainant was paid her annual leave entitlements. I do not uphold her complaint.   CA-00010831-003 The complaint regarding public holiday entitlements was received on 13th April 2017.   The time limit therefore is from 14th October 2016.   The complaints relate to 2014 and 2015 and 2016.   Section 21 of the Act provides for entitlement in respect of public holidays. Section 23 provides for compensation on cesser of employment. Having reviewed the sections, I find no breach of the Act by the respondent. I do not uphold the complaint.

Decision:

CA-00010831-001 In accordance with Section 79 (6) of the Employment Equality Act 1998 I decide in favour of the complainant that she has been discriminatorily dismissed from her employment and that the respondent failed to consider fully the issue of reasonable accommodation. In accordance with Section 82 of the Act I require the respondent to pay to the complainant the sum of €15,000 compensation. CA-00010831-002 I do not uphold the complainant’s complaint. CA-00010831-003 I do not uphold the complainant’s complaint.   Dated:   18th December 2017 Workplace Relations Commission Adjudication Officer: Gaye Cunningham