ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002267

Complaint for Resolution:

Date of Adjudication Hearing: 28th September 2016 and 14th December 2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

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

Complainant’s Submission and Presentation:

The complainant is employed by the respondent since 5^th March 2005. He sustained back injuries while at work in December 2007, and December 2011 and underwent back surgery.

When he returned to work from his first surgery in 2011, initially he was accommodated with non-contact duties and this was the case for four to five months working in the control room, working in the waiting room and censors office. He was transferred in June 2011 where he was assigned general duties.   He sustained a further back injury in December 2011 and was out of work from 11^th December 2011 to 18^th May 2012. On 16^th April 2012, the respondent’s chief medical officer advised that when the complainant was in a position to resume work that he should do so with non-prisoner contact duties. At the time, this could not be accommodated as a number of Officers were on restricted duties. He returned to work on 18^th May 2012. The office of the Chief Medical Officer advised on 12^th March 2013 that the complainant would not be able to involve himself in control and restraint (C&R) duties in the medium to long term and the complainant was therefore assigned to locally agreed restricted duties. On 8^th May 2013 he was assigned into full range of duties slowly over a period of 3 to 4 weeks, effectively being taken from the locally agreed duties without consultation.  The complainant thought it best then to apply for a transfer to the Security Screening Unit (SSU), and Operational Support Group (OSG) or the Canine Unit. It is submitted that in or around October/November 2013 the complainant was told by the Governor that he was to be assigned to OSG/SSU in a few weeks but this transfer never happened.   The complainant submits that the sanctioning of this transfer would be perfect for him and would provide him with “Reasonable Accommodation”.   The complainant underwent surgery again in 2015 and had some local discussions regarding returning to work and exchanging some duties with another Officer. The respondent issued a letter to the complainant on 28^th May 2015 which stated : “this office will be in contact with you in the next few weeks regarding your proposed return to work”. However, no contact was made. The complainant finally met with the Governor in July 2015 who advised him that he was unable to facilitate a return to work due to a policy document on restricted duties and a recalculation of restricted postings available to him. A meeting then took place between the complainant and the Governor and HR. The complainant felt this meeting was helpful and that a plan would be developed to get him back to work.   On 15^th October 2015 the Governor advised the complainant that “the only option that is available is for your return to work under the terms and conditions of the accommodations policy”.   On 29^th October 2015 HR advised him that the only solution was either ill health retirement or consideration of transfer to PASO grade. PASO is a lower grade to which if he transferred, would result in a loss in the region of €48,000 per annum.    On 6^th November 2015 the complainant received an email from HR stating:           “In your case, the CMO has advised that you are unlikely to return to full duties.   It is therefore not possible for you to return to duty under the current policy. I can explore the potential for you to return as a PASO grade with PASO terms and conditions, if you wish, or I can forward you the Ill-Health Retirement forms. I regret I do not see that we have any other options”.

It is argued that the respondent failed to provide reasonable accommodation in circumstances where there are numerous persons across the service who due to their own respective and personal conditions are being accommodated long term and exempt from carrying out control and restraint duties. Two particular comparators were cited who were permitted to return to work following serious back surgery (MG and CD).   It is submitted that the respondent is incorrect in asserting that it has no onus to provide reasonable accommodations and/or is exempt by Section 37.

It is submitted that there are many Prison Officers who are in a position to carry out their daily functions with minimal contact or risk of physical contact with prisoners. The type of functions are as follows:

1. Operational Support Groups (OSG)

2. Security Screening Units (SSU)

3. Canine Unit

4. Postal Censoring

5. Prisoner Phones / Staff keys

6. Internal numbers and keys

7. Main Gate

8. Visitors Reception

9. Control Room, CCTV, Radios, Phones

10. Visits Entrance/Exit

11. Prison Business / local driver

12. Detail Office.

It is argued that if the complainant were to work in any of the foregoing positions, it would neither affect the operational capacity of the job or the service.

The complainant’s earnings have reduced drastically (from €77,800 in 2014 to €9,282 pension rate sick pay in 2015/2016).

In summary,

The complainant suffers from a disability in particular a back injury.

He wishes to return to work but is not being provided with “reasonable accommodation” in terms of distribution of tasks at no or minimal cost.

The respondent’s own CMO recommends that the complainant return to work in a position where there is not restraint and control.

The respondent mistakenly alleges that they are exempt from providing “reasonable accommodation”.

The respondent has failed to implement their own policy by failing to consider if exceptional circumstances exist.

The respondent has not been proactive in seeking to accommodate the complainant.

There are plenty of positions available that would allow the complainant return to work.

The complainant has therefore been discriminated against on the basis of disability by reason of his employer’s failure to consider and implement a reasonable accommodation policy.

Case law was submitted in support of the complainant’s case, i.e. DEC-E2012-125, where the Equality Officer had found that the respondent had failed to provide the claimant with reasonable accommodation, DEC-E2013-090, where the claimant was discriminated against on disability grounds, and in response to the respondent’s assertion that Section 37 “reflected” their exemption from providing workplace accommodation, referred to DEC-E2014-012.

Respondent’s Submission and Presentation:

Preliminary Issues - Time Limit

As a preliminary matter, the respondent submits that section 77 (5) (a) of the Acts states that “a claim for redress in respect of discrimination may not be referred under this section after the end of the period of six months from the date of occurrence of discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”.               The respondent submits that in the complaint form received by the WRC on 4 March 2016, the complainant identifies the most recent occurrence of discrimination to have taken place on 29 October 2015. It is the respondent’s contention that no discrimination occurred on 29 October 2015 and as such the complainant failed to meet the requirements of section 77 (5).

Preliminary Issues – application of Section 37

It is argued that there is no onus on the respondent to provide workplace accommodations. This is reflected in Section 37 of the Act as amended:

“37 (3) It is an occupational requirement for employment in the Garda Siochana, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the Garda Siochana or the service concerned may be preserved”.

It is submitted that Section 16 of the Act provides that an employer is not required to recruit or promote an individual or retain an individual if the individual is not or no longer fully competent and available to undertake the duties attached to that position.       However, the respondent is committed to the provision of workplace rehabilitation that supports and enables injured or sick employees to remain at or return to the workplace where it is possible to do so. In July 2014 the respondent introduced the Policy for Accommodations (Rehabilitative / Restricted Duties) in order to formalise the processes and procedures which apply in such circumstances.

Details of Case

It is accepted that the complainant sustained an injury to his back during an incident in December 2011. He had a number of absences since that time linked to the incident.   His current absence on sick leave commenced on 16 February 2015.   He was referred to the Office of the Civil Service Chief Medical Officer who, on 11 May 2015 advised that there is no prospect of the complainant returning to full duties.   When that advice was received it was apparent that it would not be possible for the complainant to return to work under the Accommodations Policy. The Assistant Governor at the time also confirmed there were no suitable posts for the complainant. At a meeting in July 2015, the APO explained to the complainant that the only options open to him were : to explore the potential to move to the PASO role (an administration role) or to raise the issue of ill-health retirement.     The complainant turned down both options.   The APO confirmed with management that the respondent does not have the scope to accommodate staff on restricted duties other than as prescribed in the Accommodations Policy.  

Reasonable Accommodation

In this case, there are no adaptations that can be made to premises or equipment that would allow the complainant to perform his duties, nor is there training that could be provided to that end. The only adaptations that can be considered are to his pattern of working time and the distribution of tasks.   The offer of a potential reasonable accommodation was put to the complainant in July 2015 – that of exploring the possibility of him becoming a PASO – and it was turned down.

The complainant has maintained a position where he wishes to be paid to his maximum potential without carrying out his full duties or attending as required. He has acknowledged that he is unable to carry out night duties, but rather than forego the night duty allowance he is seeking to return on an arrangement where a colleague would cover his night duty attendance.

The complainant has argued that the exceptional circumstances of his case should have allowed for a return to work under the Accommodations Policy. The policy states at section 2.4 :

“Each period of recuperative / restrictive duties should not exceed 3 months. Only in the most exceptional circumstances will accommodations of this nature extend beyond 3 months and only on the recommendation of the CMO and having regard to the operational needs of the [respondent]”.

The complainant is misinterpreting the policy. Extensions to a period of recuperative / restrictive duties can only be considered in cases where there are the most exceptional circumstances. The complainant does not qualify to be considered for an initial period of such duties and therefore the question of an extension has no relevance to his case.   This section refers only to cases where an officer who is expected to return to full duties does not fully recover in the timeframe.

It is submitted that the complainant’s arguments in regard to injuries arising in course of his employment, no compensation having been received, exceptional sick leave record prior to his back injury, exemplary disciplinary record and the complainant’s financial circumstances are all irrelevant.

Suitable posts

The respondent’s objective in dealing with cases such as the complainant’s is not to interfere with an employee’s ability to attend work and earn a living. It is committed to the provision of workplace rehabilitation that supports and enables injured or sick employees to remain at or return to the workplace to continue the discharge of work duties.   However, the respondent needs a workforce that is capable of performing all of the duties that they were recruited to undertake in order to function.

While the complainant did apply for transfer he has never been reached on the lists and as officers with more seniority apply for transfers he has gone down further on one list.

It is submitted that it is not the case that a role in OSG would be suitable for someone with a back injury.

All of the posts mentioned by the complainant as being suitable are subject to Placement policy whereby vacancies arising are filled by officers who applied to be placed on a panel.

In summary,

The only ‘reasonable accommodation’ that could be considered has been turned down by the complainant.

It is an occupational requirement for employment in the respondent that persons employed therein are fully competent and available to undertake, and fully capable of undertaking the range of functions that they may be called upon to perform.

The requirement to consider ‘exceptional circumstances’ does not arise in this case as the Accommodations policy does not apply.

The respondent has been proactive in seeking to identify a reasonable accommodation for the complainant.

The complainant has not identified a suitable comparator, has not identified any suitable post that he could be placed in and has not been discriminated against.

Findings and conclusions

I have investigated the complainant’s complaint having received submissions from the complainant and respondent and held two hearings at which the issues were outlined by both parties, as summarised above.

Preliminary issues – Time limit

As a preliminary matter, the respondent submitted that section 77 (5) (a) of the Acts states that “a claim for redress in respect of discrimination may not be referred under this section after the end of the period of six months from the date of occurrence of discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence”.          The respondent submitted that in the complaint form received by the WRC on 4 March 2016, the complainant identifies the most recent occurrence of discrimination to have taken place on 29 October 2015. It is the respondent’s contention that no discrimination occurred on 29 October 2015 and as such the complainant failed to meet the requirements of section 77 (5).

Findings

The complainant’s complaint of discrimination is that the respondent failed to provide him with reasonable accommodation to return to work.   I note the meeting on 29 October 2015 between the complainant and the APO and the complainant’s union representative at which the APO advised the complainant that there was no long term solutions, save the possibility of PASO grade or retirement on ill health grounds. I also note the email from the APO to the complainant, dated 6^th November 2015 stating:

“In your case, the CMO has advised that you are unlikely to return to full duties. It is therefore not possible for you to return to duty under the current policy. I can explore the potential for you to return as a PASO grade with PASO terms and conditions, if you wish, or I can forward you the Ill-Health Retirement forms. I regret I do not see that we have any other options”.

Going by the formal advice contained in the email of 6^th November 2015, I find the latest date of alleged discrimination was 6^th November 2015 and the complaint is within time.

Preliminary Issues – application of Section 37

It was argued by the respondent that there is no onus on the respondent to provide workplace accommodations. This is, it was argued reflected in Section 37 of the Act as amended:

“37 (3) It is an occupational requirement for employment in the Garda Siochana, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking the range of functions that they may be called upon to perform so that the operational capacity of the Garda Siochana or the service concerned may be preserved”.

It is submitted that Section 16 of the Act provides that an employer is not required to recruit or promote an individual or retain an individual if the individual is not or no longer fully competent and available to undertake the duties attached to that position.                                                                  

Findings

In addressing the respondent’s argument that there is no onus on the respondent to provide workplace accommodations, I find that the submission of the complainant’s complaint of discrimination, and the possibility that he might succeed in his case will not undermine the operational capacity of the service and I therefore find that section 37 of the Act does not disbar him from taking his case nor prevent the respondent from reply.

The respondent stated that Section 16 of the Act provides that an employer is not required to recruit or promote an individual or retain an individual if the individual is not or no longer fully competent and available to undertake the duties attached to that position.   Section 16 (3) (a) is the relevant section upon the complainant relies and provides as follows:

“(3) (a) For the purposes of this section, 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.”

For the reasons outlined, I find the complainant’s complaints are in time and properly before me.

Substantive Issue

It is common case that the complainant suffers a disability and is covered by the disability ground.

Reasonable Accommodation

The Legislation

I have already dealt with the application of Section 37 in my preliminary findings above.

Section 16 of the Employment Equality Act 1998 as amended 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 –

1. 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

2. 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 sections, 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) An 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 and advance in employment,

(iii) To undergo training,

Unless the measures would impose a disproportionate burden on the employer.”.

The complainant had a history of back injuries and surgery from 2011 and the respondent appeared to try and accommodate him, at least locally on some occasions when he was returning to work. However, there was a difference in how he was treated in the latter time of his absence and while he held some hopes of being accommodated with lighter duties, this disappeared around October 2015 when management confirmed to him that (a) he did not qualify for the respondent’s accommodations policy and (b) he could either apply for a PASO grade or retire on grounds of ill health.

The respondent largely relies on its Policy for Accommodations (Rehabilitative / Restricted Duties) in its rebuttal to the complainant’s case.  This policy was introduced to the service on 12^th February 2015. I note in that policy, the respondent re-iterates its assertion that there is no onus on it to provide such accommodation, citing Section 37 of the Act.

The policy has as its purpose “to facilitate an early return to work following a period of sickness absence where a Prison Officer/employee may not be fit for a ‘full range of operational duties’ or contractual hours. It is also to accommodate staff who are at work but who at the specific time cannot, for medical reasons undertake the full range of duties”.  

“2.3. Rehabilitative / restricted duties will only be agreed to if it will aid the recovery of the Officer and it must be seen as short term. The advice of the Chief Medical Officer (CMO) will be sought where necessary. The purpose of facilitating an officer with rehabilitative / restricted duties is to assist the officer’s phased return to work.

2.4. Each period of rehabilitative / restricted duties should not exceed 3 months. Only in the most exceptional circumstances will accommodations of this nature extend beyond 3 months and only on the recommendation of the CMO and having regard to the needs of the [respondent]”

The respondent in its submission, stated that the complainant did not qualify to be considered under the Accommodations policy as there was no prospect of a return to full duties. I have examined this in the context of the Nano Nagle case where Noonan J. in [2015] IEHC 785 quoted the Labour Court:

“There is no doubt that [Ms Daly] was severely limited by her disability and the range of tasks that she could perform. She could not carry out all of the duties attaching to the role of SNA. But she could undertake many of these tasks. It appears from the evidence adduced that the school’s response to that position was based on the belied that its duty was confined to providing [Ms Daly] with such accommodation as might enable her to undertake the full range of tasks expected from a SNA. Regrettably, no amount of accommodation could produce that result. In that respect [the school] construed its duty too narrowly and took a mistaken view of what the law required in the prevailing circumstances”.

In this instant case I find that the respondent has taken a mistaken view of what the law requires in dealing with the circumstances of the complainant.

I note the requirements of Section 4 of the respondent’s policy:

Section 4 of the policy provides:

“4.1 Establishment of Accommodations Committee

An Accommodations Committee chaired by the local HR Governor and comprising the Senior Operational Chief Officer, the local Health & Safety Manager, the local Health and Safety Representative, the local Staff Support Officer, the Detail Officer and a member of the local union branch must meet on a case by case basis to agree on a list of tasks / duties that are suitable for Officers seeking to return to work on a rehabilitative / restricted duties programme. It will not be the role of this Committee to examine or discuss any Officer’s medical condition.”

I note the requirement that the Accommodations Committee must meet on a case by case basis. The respondent in this case, decided at some stage that the complainant did not qualify for the Accommodations policy and took no proactive stance in assisting the complainant to return to work. I note the comparator cited by the complainant and while there was some doubt cast at the hearing by the respondent, I accept the complainant’s evidence regarding comparator (CD) who was facilitated under the Accommodations policy and was given an extension under that policy.

I note that the Occupational Health Physician in her letter dated 11^th May 2015 stated:

“I have discussed his case with the CMO and we feel that for the initial three months [he] should be assigned to non-prisoner contact duties to allow for an adequate rehabilitation period following his surgery”.

The question arises who decided that the complainant did not qualify for the Accommodations policy?   The question also arises that if the respondent is going to disbar certain employees who have a disability from the respondent’s Accommodations Policy (on the grounds that the ability to perform full duties might not arise within or after a 3 month period) is the respondent’s policy in line with the reasonable accommodation provisions in Section 16 (3) of the Acts?

The Labour Court in “A Government Department v A Worker [ADE 0516] held:

“The duty to provide reasonable treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”.

In ELR [2004] Humpheries v Westwood Fitness Club, the Court outlined the test of reasonable accommodation:

“1. The employer must establish the degree of impairment arising from the disability by way of medical assessment / evidence

2. The employer must consider what treatment or facilities may be available by which the employee can be fully capable (considering the cost and viability)

3. The employee must be allowed to participate at each step of the process and have their input.”

In this instant case, I find that the respondent had the medical assessment and while the various letters indicated that (a) he was fit to return to work but on restricted duties, and (b) there was a possibility of him never being able to carry out control and restraint duties the respondent took a very narrow view when it did not allow the complainant to avail of its Accommodations policy. Further I find that the complainant was not allowed to participate at each step of the process and have his input.

I conclude that the respondent failed to consider the provision of reasonable accommodation in relation to his return to work.

Decision:

In accordance with Section 79(6) of the Employment Equality Acts 1998 as amended I find that the respondent has discriminated against the complainant on the basis of his disability by failing to consider reasonable accommodation in terms of his disability.

In accordance with Section 82 (1) of the Acts, I order that the respondent reviews it Accommodations Policy in light of Section 16 (3) of the Acts.   I further order the respondent to allow the complainant to avail of the Accommodations policy in the employment. I order that the respondent pay the complainant the sum of €40,000 compensation for the effects of the discrimination.

Dated:2^nd February 2017