EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017-014
PARTIES
Ms. Katarzyna Gromadinska
Represented by Mr Lars Asmussen B.L.
(Instructed by Sean Ormonde , Solicitors)
v
Frankfield Supermarket ltd
( Ryan Supermarket Group)
Represented by Ms Deirdre Cummins B.L
( Instructed by Diarmuid O’Shea and Co , Solicitors )
File reference: EE/2014/480
Date of issue: 16th February 2017
The Dispute
1.1 This dispute concerns a claim by the Complainant that she was discriminated against by the Respondent in relation to her employment on the grounds of disability and race contrary to Sections 6(2)(g) of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), and by the failure of the respondent to provide her with reasonable accommodation contrary to Section 16 of the Acts. The complainant sought to augment the complaint through reference to a claim for discriminatory dismissal on a submission lodged with the WRC on 30 March, 2016.
1.2 The Complainant referred a complaint under the Acts to the then Director of the Equality Tribunal (now Director General WRC) on 10 September, 2014. On 15, June, 2016, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Patsy Doyle, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold hearings on 24 June and 27 September, 2016, where both parties were represented. Submissions were received from both parties .
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015
2. Summary of The Complainant’s Submission:
2.1 The complainant is a Sales Assistant, who commenced work with the respondent on 10 November, 2007. She worked on a full time basis and received payment of €19,500 per annum. She had an extensive range of duties at the shop in which she worked.
On 25 June, 2013, the complainant attended her GP, where she received a diagnosis of hypertension (high blood pressure). She obtained a medical certificate to that effect and submitted it to her employer .She proceeded on sick leave for which the first three weeks were paid. Her employment ceased when she resigned her position on February 5, 2015.
The complainant was invited to a “sick leave management” meeting by way of letter dated 20 January, 2014.She attended a meeting with Ms. HRM( Human Resource Manager) and Mr. DCM( Deputised for Chill Manager ) on January 24. The complainant discussed her symptoms and her planned MRI scan which would determine her return to work date .The respondent offered her a referral to the company doctor. The complainant indicated that she would continue with her own GP and expected to be out for another three months . She confirmed that she would be in contact with the respondent post her GP visit . The respondent indicate that her position would not be held open for her indefinitely .
The complainant was invited to a follow up meeting on June 12, 2014.The complainant submitted a copy of a letter from her GP dated 18 June 2014, indicating her fitness to return to work on June 24. The GP recommended that the complainant be transferred to a different position involving light work in better conditions without the need to lift heavy objects.
The complainant sought to establish a return to work date, but was unsuccessful. She wrote to the respondent dated June 24 outlining her loss or earnings due to cessation of illness benefit and her delayed return to work date.
On June 25, The respondent company Dr examined the complainant .The complainant requested a copy of the medical report and met with Ms. HRM, Mr. SM( store manager) and a legal consultant, representing her interests from the Immigration Advice Bureau on 30 June,2014.
Mr. SM confirmed that the respondent would not be paying the complainant during this period and indicated that they were attempting to identify a suitable alternative role for the complainant. The company had not yet received the feedback report from the company doctor and were hoping to re-arrange a meeting to resolve the situation.
It was the complainants case that the respondent had received the completed medical report from the company doctor dated June 30th, wherein Dr CD (company doctor) noted that the complainant was in receipt of medical certificate from her GP stating that she was unable to work due to hypertension, that she was being treated with beta blockers in respect of same and that lighter workplace duties may be more suitable .He recommended that she should discuss her case further with her GP. He recorded his opinion that he could not see the complainant being able to return to work for the foreseeable future as stress would aggravate her mental state of anxiety if she returned to work.
2.2 The complainant advised the hearing that she was pursuing a parallel personal injuries against the respondent and some information on her employment case overlapped in terms of disclosure .Counsel for the complainant drew the attention of the hearing to the conflict in the two medical reports pertaining to the complainant from June 2014.
2.3 The respondent wrote to the complainant on July 2, 2014 ,enclosing the medical report of Dr CD. And outlining that the respondent was not in a position to return her to work
“ …..we cannot offer you any position as it would be irresponsible for us to do so ….”
There was a suggestion that the complainant could meet with the respondent again or try the option of returning to the company doctor .The complainant submitted that there was no evidence that the company considered how the complainant could be reasonably accommodated .There was no further contact between the parties .
On 6 August 2014,in the context of referral to the personal injury sustained by the complainant ,the complainants Solicitor contended that she had been unreasonably prevented from returning to work and denied reasonable accommodation under the Employment Equality Act. He asked for a reconsideration by the respondent .
The complainant did not receive a response to this submission until October 1, 2014 ,when the complainant’s personnel file was received without an engagement on the request for reasonable accommodation .
2.3 On November 17, 2014 The complainant noted that two full time positions were advertised in the respondents sister store . Experience in Confectionary and Chill was deemed an advantage . These positions were not discussed with her by the respondent . Further representations followed in January 2015 ,where the respondent was reminded that the complainant was still seeking reasonable accommodation into a position other than her existing role in the Deli and Bakery Department to a role in any other department that would facilitate her disability . The complainant via her Solicitor contended that her disability was being exacerbated by the continued denial of being considered for reasonable accommodation and placed the respondent on notice that she was considering termination of her employment.
2.4 The respondent wrote to the complainant on 29 January expressing a surprise as mediation had been agreed between the parties .There was no further progress and the complainant resigned her employment via her Solicitor on February 5, 2015.
2.5 The respondent requested the complainant reconsider her termination of employment but the complainant did not change her mind. There was a considerable delay in securing her P45 and statutory entitlements, which were eventually received following a letter of April 30, 2015.
The complainant made a complaint of unfair dismissal before the EAT and on May 6, 2015, the respondent remarked that there was work available for the complainant but did not take account of the stated need for reasonable accommodation .
2.6 The complainant sought application of the definition contained in respect of Disability in Section …..(c )
The Malfunction, malformation or disfigurement of a part of a persons’body
Where in the instant case, the complainant suffered from hypertension and related heart and blood level conditions and that same manifested itself in a large number of symptoms that often rendered the complainant unfit for work.
2.7 The complainant submitted that the respondent was on correct notice of the existence and severity of the complainants disability citing
Connaught Gold Co-op Society V A Worker EDA 0822 where the Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employees disability.
The complainant cited an analogous case in An Employee ( Mr. ) no 2) V an Employer [2005]ELR 132 where the Labour Court had found that an employer had not been sympathetic to an employee post return from sick leave. The complainant applied it to the submitted facts .
1 The complainant was not treated in a supportive manner by the respondent during her attempt to resume work post sick leave
2 The respondent failed to provide occupational assessments and hold meetings to discuss same
3 Failed to provide reasonable accommodation and ignored the potential created in the November 2014 advertisements
4 Allowed the complainant to remain without income
Counsel contended that the complainant was subjected to direct discrimination by the respondent on the grounds of her disability in its refusal to allow the complainant to make a proper return to work and in its adverse treatment of the complainant during this time .
2.8 The complainant contended that the respondent omitted to carry out a full assessment of the needs of the complainant on her return to work citing Mr. A V Government Department EDA 061,The complainant argued that the complainant drove all the initiatives to secure her safe return to work and the respondent failed to engage in requests for further assessment and reasonable accommodation .They contended that there was no written evidence whatsoever of any discussion or decision by the respondent vis a vis investigating contemplating or providing reasonable accommodation .
2.9 The complainant contended that she had been constructively dismissed due to her discriminatory treatment at the hands of her employer , whose behaviour was so unreasonable as to leave her no choice outside resignation .
The complainant sought an award of compensation in line with the principles provided for in Citibank V Ntoko EED 045, where compensation for the effects of discrimination must be proportionate , effective and dissuasive .
3 Evidence of The Complainant
3.1 The complainant told the hearing that she liked her job which consisted of a variety of tasks . It was important to be flexible and adaptable as alterations were frequent .There was no nominated person who directed this change but tasks did change .
In June 2013, her health was good . A full time colleague had gone on sick leave and there was more for the others to do who remained . She began to experience headaches , High Blood pressure and dizziness . There were variable temperatures in the chill area going as low as -20 degrees Celsius and the oven temperatures were high ranging .Her body reacted and she feared having a heart attack or a stroke .She commenced sick leave .
She was close to the team at work and saw herself as being part of the family and understood that once she was cleared for work on 18 June 2014,( she handed in the clearance for return to work on the same day) she knew it would be a” series of small steps “ for her return. She was looking forward to starting back on June 24 and did all she could to make that happen .
She had been undertaking a course of hormone treatment and she began to experience palpitations . The respondent was unaware of this treatment .She commenced some medication to assist her anxiety , she did not share these details with the respondent .She was very keen to get back to work as she knew that the shop was busy .
3.2 She recalled the visit to the company doctor on June 25. He was late and the complainant stated that she was nervous .The complainant told the company doctor about her health and he checked her blood pressure .He told her that she was not ready to go back to work and she should return to claim benefit at Department of Social Protection and obtain a medical card as she was still sick . The complainant told the hearing that she disagreed with this .He had received her own GP report . The complainant did not mention the hormone therapy as the questions asked of her were very narrow .
3.3 She recalled the correspondence from the respondent on July 2nd where she assumed she would be allocated some revised work. She saw the company doctor report for the first time on July 2, 2014,and told the hearing that the respondent never discussed anything arising from this report outside a refusal to allow her back to work .
She was not directed back to her GP , who knew her , or for any other medical consultation. There were no other measures taken by the company to get her back to work. This caused her feel sad and lose a certain amount of trust in her employer .She did not inform the respondent of the hormone therapy or her anxiety medication . She found the advertisement for two positions during November 2014.
The complainant informed the hearing that eventually by January 2015, she had been without pay for many months ,she did not accept that the respondent was willing to work on a return to work for her .Her husband was also out of work .She resigned via her Solicitor and commenced looking for another job as she did not believe that the respondent was serious in asking her to reconsider .She felt like an outcast from a job in which she had worked hard .
3.4 During cross examination, the complainant confirmed that she had sustained a slip while working . A fellow colleague Ms. SA1 (sales assistant) was on sick leave and her loss was felt in the shop . One colleague couldn’t deputise in the bakery and this placed additional pressure on the complainant . She told the hearing that she had worked in the bakery section from her second year of employment but had not raised a grievance with the store manager regarding her unease with the short staffing situation .
The complainant confirmed that her medical condition was to some extent due to work in June 2013. She was unhappy with the “ lifting tasks” required of her. She admitted that she had not made a complaint to the respondent .” Everyone knew how hard it was, nobody wanted to work in the bakery”
During her first meeting with her managers in January 2014, the complainant confirmed that she had described her symptoms but had not mentioned work related stress. She had expressed some concerns regarding attitudes but not on working conditions.
The complainant disputed that her health was unaffected by her working conditions and relied on her GP report where heavy lifting was precluded on her advised return to work .
The complainant advised that the hormonal treatment started later during her sick leave .
The complainant confirmed that the company doctor consultation lasted 15-20 minutes, where he had a long discussion with her .She told him that there were no problems, just language difficulty. She became stressed over the course of the consultation and did not tell him about the anti-anxiety medication she was taking or the hormonal treatment as the doctor had not asked her .
The complainant accepted that her blood pressure was recorded on the company doctor report but not on her own GP report .In answer to Counsel for the respondent question on “ What was your disability ?”she replied “ I am not really healthy, Anxiety and high blood pressure .She qualified this by stating :” When I was working , I had no anxiety “
Counsel for the respondent asked whether the complainants symptoms had ceased on conclusion of the hormonal treatment ?The complainant answered that the treatment took 3-4 months but that she felt well on her completion of sick leave .
The respondent put to the complainant that the company doctor had established a normal blood pressure but had found anxiety .The complainant acknowledged some anxiety which was managed by medication .She was not limited by illness as she had been before .
3.5 In relation to the meeting of June 30,2014,the complainant disputed that she had not spoken at the meeting .The complainant confirmed that she had not contacted Ms. HRM or anyone else from the respondent business post July 2. She was in contact with her own GP ,who said that she did not know what to do . The complainant stated that she did not know how to organise things to move on. Even her appointed lawyer was ignored by the company .She decided not to engage in mediation .
When approached by the respondent in ascertaining the complainants interest in returning to work ,the complainant stated that she had tried to talk with the company earlier but had waited for contact from the respondent in vain .
The complainant stated that she would have been open to taking one of the advertised positions as it was a nicer bakery , where more time was spent making product and less involving freezer work .No body offered her the position .
3.6 The witness answered some questions in redirection on instructing her solicitor and confirmed that her health was stable and she believed that she could do daily tasks when she sought a return to work in June 2014.
The complainant summarised : The complainant was relying on the definition of disability in Section 3.2(c ) of the Act .The comparator was submitted as a hypothetical comparator .The complainant submitted that there was no offer of reasonable accommodation and it was not a small business .The complainant could have been accommodated within the role of Sales Assistant . There was no reason for the complainant to be excluded from a resolution as the company had demonstrated that they accommodated pregnant workers with specific needs .There was a marked delay of two months before mediation was accepted by the respondent .This response was shallow and not adequate in the circumstances .The complainant submitted that the claim for discriminatory dismissal was properly before the WRC as it would be non sensical to repeat the claim given that the respondent was on notice of the claim .
4 Submission on behalf of the Respondent:
4.1 The Respondent denied that the complainant was discriminated against on the grounds of disability in the course of her employment or that she was constructively dismissed. It was further denied that the respondent caused, contributed to or exacerbated in any way any alleged disability of the complainant.
4.2 The respondent submitted that the complainant had been absent on sick leave due to
“ hypertension, arrhythmia ,tachycardia “ and made a request to return to work after one year’s absence. The respondent received a notice from the complainants GP where “ light work in better conditions without lifting any heavy objects” was requested as a basis for return to work. The respondent, acted in a responsible and cautious manner referred the complainant for medical examination by their own Physician.
4.3 Upon Medical examination on 25 June 2014, the doctor engaged by the respondent formed the view that the complainant was suffering from chronic and uncontrolled anxiety, hypertension and marked tachycardia. The complainant was deemed not to be medically fit to return to work for the foreseeable future. The respondent submitted that it would have been unduly onerous to expect the respondent to create a suitable alternative position for the complainant .Furthermore, there were no positions available that would have conformed to her requirements.
4.4 On the complainants employment in 2007, she signed a contract and received a staff handbook .She also completed a health questionnaire without disclosing any medical condition therein .The respondent confirmed that June 2013 was the company’s first notification of the complainants hypertension .
4.5 The course of events leading to the joint meeting with the complainant on January 24, 2014 was undisputed .The respondent submitted that they were managing the complainants sick leave during this meeting , where further details were sought on the complainants likely return to work? . This was followed up from the respondent by a request to meet on 12 June .
The respondent received the medical certificate from the complainants GP on 18 June confirming a return to work date of June 24 .This was accompanied by a request that the complainant be given “ light work in better conditions without lifting any heavy objects? “There were no reasons submitted as rationale for this set of recommendations .The respondent requested that the complainant attend the company doctor on June 25, 2014.This report was furnished to the complainant on July 2.
4.6 The respondent met with the complainant on June 30 in the company of her representative. They informed the complainant that rosters needed to be completed two weeks in advance and that in light of her own doctors comments,” they would have to find a suitable role” for her .
4.7 The company doctor found the complainant medically unfit to return to work for the foreseeable future .The respondent acted on this recommendation by advising the complainant that they could not offer her any position as it would be irresponsible. Instead, they offered the complainant the option of another meeting with them or a return consultation with the company doctor paid for by the company .The complainant did not act on either of these options and no further medical reports were submitted on her behalf . The respondent had hoped for the option of mediation to resolve issues with the complainant but the complainant refused to engage .
4.8 The respondent submitted that the complainants solicitor sought the complainants immediate return to work on January 27, 2015. Mediation was put forward by the respondent but this was rejected by the complainants immediate resignation on February 5,2015.
4.9 In the course of the action under PIAB, the respondent received a medical report compiled by the complainants GP dated 1 May 2015
“ ailments were connected with a hormonal treatment which the complainant received from her Gynecologist .In February, 2014, she started feeling better –the ailments disappeared after the discontinuation of hormonal therapy”
This was the first time that the respondent had been made aware of any alleged causal connection between the hormonal treatment and the complainants ailments .
4.10 The clinical findings in this report referred to the beginning of sick leave and no reference was made to readings or findings made during the course of sick leave or thereafter .An addendum dated 18 June 2015 indicated
“ When she finished her sick leave, the blood pressure was normal, the heart rhythm was regular , her psychological condition was normal “
The respondent submitted that the complainants position had been kept open for a year, and the company were not in a position to offer an alternative position on demand. The company doctor report was clear and prohibited a return to work. The respondent asked the Equality Officer to consider the lack of response from the complainants own GP post the direction from the company doctor .There was no further request made for further occupational assessment .
The respondent contended that the two positions advertise in November 2014 were largely similar to the complainants position, which was no longer suitable .
The respondent accepted that the complainant was unfit for work but did not accept that the complainant had a disability within the meaning of the legislation citing Chacon Navas v Eurest Coletividades SA C-13-05[2006]ECR 1-000.
4.11The complainant had not submitted a comparator necessary to ground her claim.
4.12 The respondent had not established the primary facts on which she relied as being of sufficient significance to raise an inference of discrimination .Dyflin Publications ltd V Spasic EDA 0823
4.13The respondent disputed any breach in Section 16 of the Act .They submitted that in June 2014, the complainant had indicated that she did not wish to continue in her previous role and her own doctor conveyed that the previous work was too hard for her .The respondent contended that the complainant was not fully competent to return to her previous role and even if she was medically fit to return to some sort of work, the respondent was not obliged to find an alternative position for her . The respondent relied on the company doctor declaration that the complainant was not fit for work of any kind for the foreseeable future .
4.14 Relying on case law in Employee V Company DEC E-2010-062 , the respondent submitted that they were entitled to have due regard to the potential negative health and safety implications of permitting the complainant to return to work .The respondent contended that the complainant was not , by her own admission capable of returning to her previous position ,which the respondent disputed involved heavy lifting or duties more onerous .The nature of the business involved lifting, carrying goods and exposure to varying temperatures .
4.15 The respondent disputed the augmentation of the claim to include a claim for discriminatory dismissal and objected to it being heard .The respondent submitted that the claim was compromised by an overlapping claim before the EAT for constructive dismissal in the face of Section 101 of the Employment Equality Acts citing Mc Carrey V Lennon and Associates UD 909/2012 and Cunningham V Intel Ireland ltd [2013]IEHC 207.
5 Evidence of the Human Resource Manager ( Ms. HRM)
5.1 Ms. HRM is the Group HR Manager responsible for 5 stores .She confirmed that the complainant worked as a Sales Assistant with a multi task role in the Delicatessen and kitchen area .There were no issues with the complainants performance .Ms. HRM was aware of an occasion where the complainant had actioned the grievance procedure and the issue was resolved .There was no history of major sick leave in the complainants record .
5.2 The respondent sick leave management plan was followed in the complainants case, once they were first made aware of the complainants Hypertension in June 2013.Medical certs were received and after a certain period of time the respondent had a practice where they wrote to the staff member on sick leave as the number 1 priority was a safe return to work , the company doctor was called on for that purpose .
5.3 The January 24 2014 meeting was a support meeting for the complainant where she was advised not to worry about anyone else .The respondent always tried to get people back to work .The complainants position was kept open for a year
5.4 When Ms. HRM received the 18 June Medical report from the complainants GP , she didn’t know where to put her ? She approached a Senior Manager , Mr. O ,who recommended an appointment with the company doctor to outline what she could and could not do .Ms. HRM rang the clinic, spoke to Dr CD and shared a copy of the complainants GP report . She asked for clarification on foot of the decision that the complainant was fit for work .
5.5 The June 30th meeting was aimed at responding to the complainants letter to Mr. ….with regard to trying to find a suitable role for the complainant . She forwarded the report from Rd CD onto the complainant by emailing outlining her options .She did have any further direct contact with the complainant . Ms. HRM stated that she did not know what the complainant was able to do and that had the complainant come back to them saying that she disagreed with Dr CDs findings a third medical opinion would have been sought .
5.6 Ms HRM denied that the complainant was refused reasonable accommodation as the respondent “ was just trying to return her to work”. She had no knowledge of the hormonal treatment being a component of the complainants presentation until information arose in the context of the Personal Injuries case in May ,2015. She had indicated that the respondent was keen to attend mediation to resolve the issues as they were not trying to do her out of a job and the company was prepared to have the complainant come back to work for them .
5.7 During cross examination, Ms. HRM confirmed that the Sales Assistant grade was the main grade in a 540 workforce .She confirmed that there were many upgrading opportunities through the company . The complainant was covered while she was on sick leave .There was some fluidity in the baking dept. .
5.8 In response to questions raised with regard to the GP report of June 2014, Ms. HRM stated that she did not understand the report and accepted that the complainants GP was in the best position to make a diagnosis . She understood that she was not permitted to contact the complainants GP directly and she did not ask the complainant to return to her GP. She confirmed that she acted prudently in her management of the complainant .She was unsure that if she had directed the complainant back to her GP , the issue of the hormonal therapy would have come to light .
Ms. HRM confirmed that it had taken the respondent 6 days to respond to the complainant stated intention to come back to work, this was due to Mr. O , a key person being on holidays and his input was needed to get a clear line to proceed
5.9 Ms HRM confirmed that the two medical reports were a complete contra-diction of each other and if the complainant had disagreed , a third doctor would have been provided .Ms. HRM disputed that the decision on whether the complainant was to be accommodated at work was pre determined .She denied that a decision was made before all things were considered and re-affirmed that the respondent would have accommodated the complainant were it not for the report of Dr CD .
The door was left open for the complainant and everything could be changed in terms of working times, distribution of roles and training provided a staff member came with the “ right certificate “.The respondent had a positive record of assisting pregnant employees by moving to the checkout rather than prolonged standing .Ms. HRM submitted that she had told the complainant “ to get back to her and she would move things forward “
Ms. HRM had no further contact with Dr CD , she respected his report . The General Manager took up the case once the solicitor communication commenced .Ms. HRM confirmed that there were some delays in responding to communication from August due to annual leave .She did not accept that the delays and lack of substantive engagement coloured the complainants views. She hoped that someone on the complainants side would engage and was happy to try mediation .The company was not in a position to have internal discussions on the complainant as her capabilities were unclear surrounding a return to work, therefore , it was not unreasonable .
Ms. HRM denied the November advertisement offered opportunities as they would have preferred to facilitate her in her own store .Ms. HRM stated that she was not directly involved in the issuing of the final correspondence between the parties .
The respondent summarised by submitting that the complainant did not have a disability as this was not reflected in the GP report .The PIAB medical report linked a cessation with hormonal therapy with a cessation of illness. There was no medical evidence of depression .
The respondent disputed the claim for constructive dismissal as it warranted a separate referral, and was statute barred .
In relation to the claim for reasonable accommodation, the respondent was entitled to rely on the report of Dr CD as a better illustration of the complainants condition. There were marked inconsistencies in the medical evidence. The respondent submitted that the complainant “switched off” once Dr CD report issued and the company email of options was rebuffed , she refused to state her case .
6 Findings and Conclusions of the Equality Officer /Adjudicator.
Preliminary Issue on Clarification of Claims before the WRC.
6.1 On the complaint form lodged with the then Equality Tribunal on 10 September, 2014, the complainant submitted that she had been discriminated against by reason of her disability and race. She said that the respondent treated her unlawfully by discriminating against her in failing to grant reasonable accommodation with the most recent date of discrimination being 10 September, 2014. On the first day of hearing the complaint on race was withdrawn.
The question of constructive discriminatory dismissal was submitted by the complainant as having occurred on February 5, 2015 and was first mentioned in the context of the complaint by way of the Complainant submission lodged with the WRC on 30 March, 2016. In the meantime, the complainant told the hearing that a parallel claim for Unfair Dismissal before the EAT was “now gone”. The respondent objected to the claim for discriminatory dismissal as stated earlier in the report.
I have considered the parties submissions in this regard and I find that Section 77 (5)(a)of the Acts sets down the statutory time limits for a complaint before the then Equality Tribunal and now the WRC .
Section 77(5) ( a ) Subject to paragraph (b) , a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
In order to admit this claim to my investigation ,it would be necessary for the complainant to have set out her complaint of discriminatory dismissal on a separate notification to the Equality Tribunal/WRC in accordance with the statutory limitation period of six months or S.77(5)(b)12 months on reasonable cause. I find that that the claim was not framed in accordance with these pre-requisites and is therefore out of time and cannot succeed .
There were also parallel proceedings lodged before the Personal Injuries Assessment Board (PIAB) lodged in May 2014. The Statement of claim was not submitted in evidence.
On the first day of hearing, the complainant had not booked a WRC Interpreter to assist her presentation and had instead brought along her own interpreter. The respondent was dissatisfied but agreed to proceed on that basis .It was disappointing when I had to adjourn the hearing to accommodate an early finish requirement of the Interpreter .We reconvened on the second day with a WRC appointed Interpreter, having secured an approval from the parties that the first day interpretation was accepted by them.
6.1 My objective in this case is to decide whether or not the respondent discriminated against the complainant on the ground of disability in terms of section 6(2)(g) of the Acts by failing to provide the her with reasonable accommodation as provided for in Section 16 of the Act. In reaching my decision, I have reviewed and considered both parties oral and written submissions in the case. I have reflected on the evidence submitted.
6.2 From the outset of this case , I was struck by the threads of multiple parallel proceedings referred to in the complainants name .While it is entirely within the complainants rights to advance a case as decided, in the instant case there were moments when the sequence of the complaints became confusing .The Personal Injuries case was lodged first in time, followed by the claim before the then Equality Tribunal, EAT and WRC .
I understand the point made by the respondent that the grievance procedure did not serve as a foundation in advance of these actions. It was also apparent during the course of the hearing that the respondent had different response systems in place for handling grievances and responding to solicitors submissions. I believe a true potential for an earlier resolution in this case may have been placed in reach for both parties had the grievance procedure been launched as required .I have no desire to limit the complainants cause of action as in Culkin V Sligo Co Council [2015]IEHC 156,I have just seen the need to comment on a procedural nuance in the case.
6.3 Disability: For the purposes of the Acts, Section 2 provides that “disability” means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;
The complainant commenced sick leave in June 2013 and her sick notes reflected a continuous diagnosis of Hypertension and related cardiac condition .This was referred to in the social welfare report dated 17 September 2013 as hypertension de novo, which reflected a first presentation. There were 21 visits to the GP recorded on the May 2015 report submitted to PIAB. The complainant was also in attendance with a Gynaecologist at this time for hormonal treatment. Her GP clearance for her return to work reflected a diagnosis of hypertension managed by medication. The 30 June, 2014 report from the company doctor reflected a 12 month history of hypertension which he attributed to anxiety .It is reasonable for me to conclude that while there had been some secondary events in the form of hormonal treatment and anxiety, the complainant had been diagnosed as having hypertension.
Based on the evidence given at the hearing, in addition to submissions received, I find that the complainant had a disability in this case. An Employee V Bus Eireann [2003]ELR 351 considered where the company was found to have imputed a level of disability to a bus driver keen to secure an alternative posting .
I appreciate that throughout the complainants attempts to return to work, she described herself as well for that purpose and was supported by her GP in this .This statement of “wellness “was not accepted by the company doctor who found anxiety as the presiding condition and a subsequent prohibitor for her return to work.
6.3 In Arturs Valpeters v Melbury Developments [2010] E.L.R. 64, the Labour Court identified the parameters of the burden of proof necessary in employment equality cases.
“Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination
. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”
I have considered this test in the instant case .From the evidence adduced ,it was clear that up until June 30, 2014, and before the respondent received the company doctor report , the parties were working on planning a mutually acceptable return to work for the complainant .A meeting had taken place in January 2014 aimed at identification of a return to work date for the complainant . It is clear from the minutes of this meeting that this was “work “in progress at that stage .There was however, a rider at the end from the respondent
“ If after a year , we still have no likely return to work date or treatment will be on-going we will have to discuss your position as we cannot hold a job open indefinitely” .
I could not establish the presence of this provision in the respondent management of sick leave policy .
6.4 I can understand just why the respondent would seek further advice from the company doctor following receipt of the complainants GP clearance for return to work on 18 June 2014.That demonstrated clear and cogent thinking .However, the outcome of the June 25 consultation resulted in a “freeze frame “in the entire plan of returning to work .
During the first day of hearing I asked the respondent for a copy of the letter of referral to the GP and whether the GP held a qualification in Occupational Health medicine? I learned that the referral was a phone referral and generic in nature and inclusive of a submission of the GP report dated June 18. I subsequently received a letter which the company doctor submitted to the respondent dated 24 September ,2016 stating that dealing with medical certification for work was an integral part of his professional life ,and was accompanied by a long standing experience in dealing with stress and anxiety.
I asked the question simply to ascertain what direction was sought by the company in terms of a company doctor review and what expertise from an Occupational Health perspective informed the response? There was no slight intended on any doctors expertise. Just as a patient attends an Orthopaedic surgeon for a specialised hip procedures , so too do employees attend Occupational Health Physicians for specialised employment direction at particular points in time.
I can accept that neither party anticipated the medical report that followed the company doctor consultation and neither party appeared to be in a position to plan a proportionate next step following the receipt of this challenging report . Up until that point, I must accept the bona fides of the respondent that they were seeking a return to work action plan but needed to know how to incorporate the recommendations of the GP into the complainants work.
By her own admission, the complainant told the hearing that her own GP did not know what to do next and by the respondent admission, Ms HRM told the hearing that she wasn’t in a position to disagree with the company doctor report and believed that the company was governed by it .This prompted the stalemate from which neither party recovered .The complainants pay had ceased at that point and even this did not appear to focus minds on a resolution .
6.5 My attention was drawn to the timing of the personal injuries claim referred to in the Complainants Solicitors letter dated 6 August 2014 and the concurrent request for reasonable accommodation contained in that letter . Again the overlap of the claims on the same letter coupled with a lack of next step emanating from the company doctor review in late June seem to me to have prompted a reticence on the problem resolution platform by the respondent.
It goes to the core of the case that a higher weighting was placed by the respondent on the company doctor report over the GP report and there were insufficient attempts made, in my opinion by both parties to reconcile these reports into an action plan to return the complainant to work in mid-2014.There was also the question of the social welfare medical report dated 22 May, 2014,which detailed the conditions of Cardiology abnormality not linked to Occupational Injury
1 Fatigue
2 Headache
3 Poor Sleep
4 Nocturnal Insomnia
5 Pressure of Speech
There was no evidence adduced that the respondent was on notice of the findings of this report .
I have analysed these facts and find that both parties did not demonstrate an awareness of the parameters of reasonable accommodation in their approach to a planned return to work date .
I can appreciate that part of the reason for this initially was a genuine lack of awareness of the growing jurisprudence amongst the parties in the area of reasonable accommodation. However, the respondent was clearly on notice of the complainants formal application for reasonable accommodation from August 6, 2014 and I was not satisfied with the lack of engagement between the parties from that date .
6.6 The concept of reasonable accommodation is addressed in Section 16 of the Employment Equality Acts 1998-2015 and requires an employer to “do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities “
In Equality Law , 1st edition ,Bolger, Bruton and Kimber ,Chapter 7 , Section 5 .the authors gave a clear objective and rationale for reasonable accommodation.
The concept of reasonable accommodation provided for in the Employment Equality Acts recognises that the inherent characteristics of disability and its accompanying impairment can result in individuals with disabilities having difficulties in performing the job or functions of the job in a traditional or conventional manner. This manifests itself in the form of barriers which, without an obligation being placed on employers to provide reasonable accommodation, would leave individuals with disabilities in a legal no man’s land being excluded from the labour market and accompanying benefits. Therefore, reasonable accommodation allows for employers to take account (on an individual basis) of relevant characteristics of their employee/prospective employee and by doing so making changes, etc. to allow the employee concerned to do the work
6.7 The duty imposed on employers to provide reasonable accommodation means that the employer is under obligation to consider “in the broadest sense”options of reasonable accommodation.
.In A School V A Worker EDA 20/2014, the Labour Court stated :
“ The law does not require an employer to employ a person in a position , the essential functions of which they are unable to perform. But that principle is without prejudice to the obligation to provide reasonable accommodation “
6.8 In ECJ HK Danmark v Dansk Almennyttigt Boligselskab DAB and KK Danmark v Pro Display C-335/11and C-337/11The ECJ marked the transition from the medical to the social approach to Disability in recommending that the pattern of working hours could be adjusted as reasonable accommodation . This overtook the previous findings in Chacon-Navas
“If a curable or incurable illness entails a limitation which results in particular from physical, mental, or psychological impairments which in interaction with various barriers may hinder the full an effective participation of the person concerned in professional life on an equal basis with other workers and the limitation is long term one, such an illness can be covered by the concept of disability within the meaning of Directive 2000/78/EC.”
In Nano Nagle Centre v Marie Daly [2015] IEHC 785, Noonan J. held that options with regard to reasonable accommodation need to be put to the person claiming under this clause. This could involve adaptation of work patterns, distribution of tasks, inclusive of elimination of tasks. The High Court held that the respondent had to prove that it had considered adjusting the duties required of a Special Needs Assistant to permit a return to work. The High Court recognised the restrictions to this obligation when it stated:
“It may or may not be relevant to consider whether a point is reached where the appropriate measures transform the job into something entirely different from that which originally existed “.
6.9 In the instant case ,I accept that there was no obligation on the respondent to follow and implement the recommendations of the GP report dated 18 June with regard to modifications sought by the complainant post an 11 month absence from work .However , some dialogue should have occurred where the complainant had an opportunity to input and comment prior to the decision being taken to stall her return indefinitely .I could not establish just where discussions took place within the respondent business on “reasonable accommodation”?.
Instead I heard of a mutual disappointment and mistrust from the parties on the reference to hormonal treatment and anxiety highlighted in addition to the complainants accepted diagnosis of hypertension.
During the course of the hearing I asked the respondent why on receipt of a medical certificate which endorsed a return to work , did they not restore the complainant to the payroll pending direction from the company doctor ? This was deemed impossible in case something happened .This demonstrated a subjective approach void of examination of appropriate measures or a consideration of all possible alternatives on work re-alignment .I find that the referral to the company doctor was generic and lacking in specific objectives .I noted the lack of a risk assessment to ground an objective analysis of the case .
6.10 I also noted a marked contrast in the respondent acknowledged differential management practice in management of pregnant workers via risk assessment and job modification .There was a recognisable procedure incorporating documentation aides to underpin that procedure .This was not evident for reasonable accommodation .
IN Y V Calderdale Council 1806514/02 July 2003, a UK tribunal held that an individual could not be expected to suggest all his own adjustments in relation to accommodation of a speech impediment. I find that there was a regrettable delay on the complainants side to “ press forward” with local discussions either with the company or through the offer of a return consultation with the company doctor.
I find that the complainant submitted a request to return to work and resume her place on the payroll based on the June 18 report .However, once the respondent declared that this was not a viable option, the complainant did not appeal the decision .I was not satisfied that the complainant had exhausted the company grievance procedure prior to involving external agents in her case . I also found the complainant very vague during cross examination .I can appreciate that the events took place a number of years before the hearing , but I found her evidence inconsistent at times . I find that there was a regrettable delay also on the complainants side to “ press forward” with local discussions either with the company or through the offer of a return consultation with the company doctor. It is of particular note in the case, that the secondary conditions of hormonal treatment and anxiety did not form the basis of discussion between the parties at a time where the respondent may have been in a position to assist the complainant .I find this to be a stark omission on behalf of the complainant, notwithstanding her individual right to privacy.
6.11 However, I must now return to the obligations of the employer in this case informed by Section 8 of the Act
Section 8
(4) A person who is an employer shall not, in relation to employees or employment—
( a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or
( b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.
I find that the respondent operated a practice of exclusion from employment from July 2, 2014 when the company acted on and interpreted the company doctor report as a legitimate basis to deny the complainant a return to work through an inputted disability . Furthermore, while there was no obligation on the employer to provide a new or alternative position to the complainant ,there was no serious consideration of her as an individual employee of long standing in terms of the examination of appropriate measures or potential alternatives to assist her return to work . Put simply , one medical report commissioned by the respondent did not meet the proportionality test clearly set out in Section 16 of the Act . Nano Nagle considered.
6.12 I find that the complainant has established a prima facie case of direct discrimination evidenced by the failure of the respondent to act on a claim for reasonable accommodation and by the imputation of anxiety as a disability which collectively prohibited a return to work in July 2014.
I find that the respondent may have been overwhelmed in some part by the complexity of the case, lack of an internal precedent/knowledge to guide the case coupled by the twin track approach of the parallel proceedings in train. I also understand and accept that the respondent was disappointed that the complainant had not disclosed the co-existing conditions of anxiety or hormonal treatment. However, the statutory obligation rested on the employer to lead on a consideration of reasonable accommodation and the respondent cannot avail of the provisions of S16(1) so as to avoid liability under the Act .
7. Decision
7.1 I have concluded my investigation of the complaint herein and based on the aforementioned, I find that pursuant to Section 79(6) of the Act, the Respondent discriminated against the Complainant on grounds of disability in terms of Section 6(2)(g) and Section 8(4) of the Employment Equality Acts and failed to provide her with reasonable accommodation to enable her to return to work in terms of Section 16 of the Acts.
7.2 In accordance with section 82 of the Act, I order that the respondent pay the complainant €17,500 in compensation .This is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act, 1997 (as amended).
7.3 I order the respondent to immediately raise the awareness of reasonable accommodation among the Management and staff at the respondent business and to incorporate a policy on reasonable accommodation in their staff handbook within 6 weeks from the date of this decision. This policy should have provision for risk assessments and Occupational Health Physician on a self-referral and company referral basis .
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Patsy Doyle
Adjudicator /Equality Officer