ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003534

Complaint and Dispute for Resolution:

Date of Adjudication Hearing: 07/10/2016

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

At the start of the hearing, the respondent was asked if they wished to proceed unrepresented and confirmed that they would. The complainant’s representative expressed concern regarding whether the respondent was aware of the seriousness of the hearing to be heard and if the respondent was certain that they wished to proceed unrepresented and the respondent again confirmed that they were. The case then proceeded.

Complainant’s Submission and Presentation:

The complainant’s representative advised that they were withdrawing the claim under section 13 of the Industrial Relations Act, 1969.

The Complainant is currently employed as a general operative with the respondent and has been employed since 2007. During her employment she has been required to work on various machines including a machine, which will be referred to for the purpose of this decision as Machine A, and the complainant stated that she would not normally be required to work on this Machine A for extended periods. It was claimed by the complainant that this machine requires “concentrated physical effort” to operate and that it is quite an old machine.

In November 2011 the complainant was diagnosed with a hernia for which she underwent surgery on 17^th December 2012. She advised that she was only required to work on this Machine A for short durations after that, such as to relieve colleagues as the need required.

On 10^th June 2015 an issue arose at work when some employees refused to work on Machine A. As a result of this, the complainant was requested to work on Machine A for a full shift (12 hours) which she refused and stated that her medical history meant that she was not able to do so. Her supervisor advised her that as “it looks like you are not fit for work” that she would need to provide a cert from her doctor stating when she was “fit to work”.

On 19^th June 2015 the complainant provided a cert indicating that she was “unfit to operate heavy machinery” however, she claimed that the respondent read from this cert that she was unfit for any work and she was sent home. Another cert was provided on 26^th June 2015 stating that the complainant was “fit to work but unfit to operate very heavy machinery”. She advised that she was told that there was only heavy machinery in the company and sent home again and has been off work since on sick leave.

On 30^th June 2015, the complainant’s consultant also wrote to the respondent stating that it was his opinion that “it would be appreciated if she could be facilitated in a role that would not involve heavy pulling on a machine over a long period of time” and confirming that she was suffering from a “smallperi-umbilical hernia”.

On 7^th July 2015 the respondent referred her to the company doctor who issued a report which stated that the complainant “has a medical condition which may be exacerbated by straining while pushing, pulling or lifting”. The report also stated that “she is currently fit for restricted duties if available” and advised that she should “seek specialist review” and that “surgical repair of her current hernia would enable her to return to full normal duties”.

It was argued by the complainant that the respondent failed to engage with the complainant around what this might mean and failed to provide such “restricted duties”. On 9^th July 2015 the company wrote to the complainant stating they would have the complainant back to work if she is “a healthy person fit for work” and no reference was made by them to the restricted duties detailed in the company doctor’s report.

On 17^th Dec 2015 the complainant for her part did follow up and arranged a specialist review and underwent further surgery. She then went for a 2^nd assessment with the company medical provider, Medmark, on 8^th March 2016. The report stated that the complainant was fit to return to “normalmanual handling duties”. The medical report noted the complainant’s concern regarding Machine A and that her role be “examined to ensure it is safe”. This re-examination of her work area did not take place.

The respondent wrote to the complainant on 14^th March 2016 stating that they are “now forced to carry out an ergonomic review of the machine in question” and that they would contact the complainant regarding this and that “we require all staff to work on all machinery and processes”.  It was also stated “following the review of the machine, I will contact you again to discuss the report and if possible your return to work”. The following day, 15^th March 2016, in another letter to the complainant the respondent stated that they were “working as fast as possible to get an ergonomics expert to look at the machine”.

On 5^th April 2016 the complainant’s representative wrote expressing concern at the delay in this assessment and requesting that the respondent facilitate the complainant in returning to work without having to operate Machine A. The respondent replied on 12^th April stating that “unfortunately we operate a factory and are not in a position to accommodate an operator who can carry out light duties only”. The respondent stated that they require “all our operators to be flexible and fit to carry out the many different tasks that arise on a day to day basis in the factory” and that they needed the complainant to be “fully fit for work”. They advised that they would be in touch once they had a date for inspection.

The complainant’s representative wrote back on 21^st April highlighting that the respondent had previously only required the complainant to work approximately one hour per day on the machine and that the company should be able to facilitate her given her specific circumstances as they do with other employees. They once again highlighted their concern in the delay in arranging the ergonomic assessment. On 3^rd May 2016 the company again wrote saying that with regards to “light duties” they have “no such procedure or term of work”. They again stated that they were trying their best to organise the inspection. As there was no resolution, the matter was referred to the Workplace Relations Commission on 10 June 2016.

In evidence the complainant confirmed that Machine A was the only machine she felt she would be unable to work on owing to the pulling involved. She felt it would impact her negatively owing to her disability and that she required compensation for the discrimination based on her disability, her conditions of employment and the failure of the respondent to provide reasonable accommodation. The complainant’s representative cited Humphrey’s v Westwood Fitness Club [2004]ELR 296, a decision of the LC approved by Circuit Court which established a 2 stage test on employers who might seek to use Section 16 as defence to discriminatory treatment. They complainant also referenced A Worker (complainant) v An Employer (appellant/respondent/ [2005] 16 ELR 159 where the provision of special treatment or facilities is discussed and where more favourable treatment may need to be afforded to an employee with a disability which might include relieving them of the requirement to undertake certain tasks. A Worker v A School Dec-EDA1430 (incorrectly referenced as EDA1436 in the complainant’s submission) was also referred to by the complainant a case that references “reasonableness and proportionality” and another case also mentioned, a copy of which was forwarded after the hearing, was A Complainant v Bus Eireann (DEC-E2003-004) which the respondent were given an opportunity to review and reply but did not. This case references that a complainant’s condition should not constitute an “absolute bar” to a position.

Respondent’s Submission and Presentation:

The respondent was unrepresented and were happy to proceed unrepresented. In reply to the complainant’s representative, they advised that they were aware of the seriousness of the case and wished to get it resolved.  No written submission was received from them and much of the facts regarding dates of correspondence and meetings were undisputed. They advised that the company makes plastic injection large parts and employ approximately 40 employees. The complainant is a good worker and there have never been issues with her performance.

Notwithstanding the above, the respondent indicated that they cannot limit themselves in having an employee who is unable to work on all machines. They stated that while Machine A might be an older machine there was nothing to indicate it required greater physical effort than other machines. They said they were not aware that she was not able to work on Machine A after her hernia procedure in December 2012. They denied any knowledge that she had a disability. They advised that a number of employees were asked to operate Machine A in June 2015 and had refused and when the complainant was requested to work on that machine she also refused and said she was unfit to work on it and produced a cert from her doctor.

They advised that because the cert said she was “unfit to operate heavy machinery”, that they had no work for her unless she returned without restrictions. They confirmed receipt of her consultant’s report on 30^th June 2015 which stated that “it would be appreciated if she could be facilitated in a role that would not involve heavy pulling on a machine over a long period of time” but stated that they did not have any such role. They advised that while she did request work in the coating area, this is not a full-time role and reiterated that do not have any light work. They did not provide any evidence of what had been done to look for any other work for the complainant as they reiterated that they do not have any ‘light work’.

The respondent confirmed that they had referred the complainant to a company doctor at Medmark and had received the report. They confirmed again that they could not facilitate the complainant with “restrictive duties” as none was available and in a letter to the complainant dated 9^th July 2015 they advised her that “all we want is a healthy person fit for work. When we have certification of that effect we will be delighted to have you back on the payroll”. The confirmed that they had not looked within the company for alternative work or engaged with her or the doctor as to what might be suitable.

In June 2016 the area was assessed in terms of lean manufacturing and at the hearing the respondent advised that based on the advice received they decided to replace Machine A but that this would not happen straight away. This confirmed that this was the first time (at the adjudication hearing) that the complainant and her representative would have been aware of this decision. They advised that although they had advised the complainant that Machine A would undergo an ergonomic assessment, they have not to date carried this out on the basis that it was pointless as they had already decided to replace the machine with a different machine and that this replacement machine will cost approx. €125,000. They were not able to explain why they had not updated the complainant regarding this decision and they also confirmed that despite their correspondence to the complainant stating otherwise, they had never engaged with any consultant with regards an ergonomic review of Machine A.

They stated that they have no objection to the complainant returning to work to resume all normal duties. They denied that there was a disability and stated that they have never been told there is a disability. They stated that they are an SME and it is not possible to allow employees to rotate or pick what areas they want to work. They confirmed that the company is trading well and that there have never been performance issues with the complainant. They appeared to accept that the complainant is unfit to work and therefore they have not disciplined her for not being at work but they did not accept that the complainant had a disability and in any case they cannot have the complainant at work with or without a disability because they do not have light work.

The company referenced case law on the day albeit they did not know the names of the parties involved or the details around the case but nevertheless they stated that if an employee is no longer capable of performing their job because of a medical condition the courts found in favour of the company on the basis that dismissal of the employee was due to incapacity because of her disability and therefore was not discriminatory. After the hearing they forwarded a copy of the case (Carroll v H J Heinz Frozen & Chilled Foods Limited, DEC-E2011-114) to the Adjudicating Officer and the complainant representative who was given an opportunity to respond and did not. They also enclosed a document which appears to be typed-up, unsigned minutes headed “Report of meeting with Aneta on the 14/08/15 at 10 am”.

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Issues for Decision:

The complainant states that she has been discriminated against by the respondent by reason of her disability in their failing to give her reasonable accommodation for her disability, and discriminating against her in conditions of employment. The Respondent denies there is a disability and denies that they have any requirement or ability to provide reasonable accommodation.

Findings and Reasonings:

Section 6 (1) of the Employment Equality Act, 1998 provides:

“For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”) one person is treated less favorably than another is, has been or would be treated.”

Section 6 (2) (a) – (i) of the Acts outlines that the Complainant must be treated less favourably on the grounds of gender, marital status, family status, sexual orientation, civil status, religion, age disability, race or a member of the Traveller community for the case to succeed.

As this is a claim in relation to disability, Section 2 of the Acts states:

''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's doctor's report dated 30^th June 2015 confirms a peri-umbilical hernia at a site of previous abdominal hernia surgery. This is re-affirmed by the Company doctor dated 7^th July 2015 where it is expressly stated that the complainant “has a medical condition”. While the Respondent denied that the complainant had a disability or knowledge that one existed, I am satisfied that based on their correspondence with the complainant it would suggest otherwise, namely, in their letter dated 12 April 2016 they appear to accept the existence of her medical condition and that while she is fit to return they are required to assess the area as ”we need (the complainant) to be fully fit for work” which is why “we need to obtain the services of an ergonomics expert”. Based on the totality of the evidence presented, therefore, I am satisfied that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015. Having established that the complainant had a disability, Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. This requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised in this case in relation to conditions of employment and reasonable accommodation. When investigating a complaint, my role includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings of fact within the meaning of the Act.

Having regard to the time limits under the Acts I have decided that my investigation should focus, in the first instance, on alleged acts of discriminatory treatment on basis of disability and conditions of employment and of failure to provide reasonable accommodation which occurred between the 11^th December 2015 and the 10^th June 2016 i.e.in the 6 months preceding the complaint.

However in ascertaining whether or not the respondent’s treatment of the complainant amounts to discrimination and/or a failure to provide her with reasonable accommodation for her disability, it is necessary for me to examine the sequence of events which lead up to the six month period preceding the complaint. In examining these events I am doing so for their probative value in respect of the allegations of discriminatory treatment and of failure to provide reasonable accommodation, and not in the context of their being considered as separate incidents/allegations of discrimination. This investigation of events will lead me to reach a decision in respect of whether or not the complainant was subjected to a discriminatory treatment and whether the respondent failed to provide her with reasonable accommodation for her disability.

With regards to the provision of reasonable accommodation, section 16(1) of the Acts provides:

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:Section 16(3) of the Act provides: -

(a) For the purposes of this Act a person who has a disability is fully competent to undertake and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person's employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

• (i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

• (i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer's business, and

(iii) the possibility of obtaining public funding or other assistance.

The application of this Section was extensively considered by this Court in Humphrey’s v Westwood Fitness Club [2004]ELR 296 a case relied upon by the complainant in the instant case. That decision was subsequently appealed to the Circuit Court under now repealed provisions of the Act prior to its amendment by the Equality Act 2004 and was upheld in a decision handed down by Judge Dunne (as she then was) on 13^th February 2004.

In its decision this Court held that while the respondent can claim a defense of discrimination on the grounds of disability if they believed the claimant not fully capable to perform their duties, however,

“before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition…

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, s.16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Such reasoning should also be adopted in this instant case and it would appear that the respondent failed to adopt this reasoning as no consideration of special treatment was made.

In a later determination quoted by the Complainant, reported as A Worker (complainant) v An Employer (appellant/respondent/ [2005] 16 ELR 159, the Court expressed the statutory duty on an employer to make reasonable accommodation for a disabled employee as follows:

“The provision of special treatment or facilities is not an end in itself. It is a means to an end…This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus it may be necessary to consider such matters as adjusting the person's attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case (see British Gas Services Ltd v McCaull [2001] I.R.L.R. 60).

The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee. In Marie Daly v Nano Nagle School[2015] IEHC 785, the High Court recently affirmed Section 16 of the Act in its interpretation of the scope of the obligation placed by Section 16 of the Act on an employer to consider what reasonable accommodation can be made for an employee with a disability within the meaning of the Act.

The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required, as held in HK Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab; HK Danmark, acting on behalf of Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S(C-337/11). If, however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available, they will have failed in their statutory duty toward the disabled person.

The respondent stated on at least four occasions in correspondence that they do not have light duties but provided no evidence to suggest that they even looked for same. It would appear that all their energy was spent on reinforcing their set position that they “require all staff to work on all machinery and processe’s” with no evidence of time spent actively engaging with the employee or seeking if there was alternative work available for the complainant. It would appear that the respondent has failed to properly understand the scope of its duty and failed to consider all of the options that might have been available such as affording the person with a disability more favourable treatment than would be accorded to an employee without a disability e.g. limited time on Machine A. I note from the correspondence that the complainant deemed one hour a day as appropriate and while that might not be for her to determine, the respondent did not engage with anybody who might determine what would be appropriate including medical personnel. While the respondent repeatedly mentioned that they required their employees’ flexibility and that they are a smaller organisation, and thus may have been suggesting cost as an issue, the provision within the act of assessing whether “measures would impose such a burden account” such as the “the financial and other costs entailed” was not expressly argued by the respondent as a reason why they did not provide reasonable accommodation. Furthermore, the respondent did not present any evidence of what that financial burden might have been and indeed confirmed that they are trading well such that they can afford to replace this Machine A with another machine at a cost of approximately €125,000.

The respondent cited Carroll v H J Heinz Frozen & Chilled Foods Limited, DEC-E2011-114, a case where an employee was ultimately dismissed based on their disability and which was found not to be discriminatory. However, in quoting this case the respondent appears to have ignored a key element of this case namely that the respondent engaged with the complainant with a view to providing reasonable accommodation. This included, in that case, inviting the complainant to take a tour of the factory with a view to identifying suitable roles that might be considered suitable as well as emailing various heads to see how the complainant might be accommodated. Nothing of this nature appears to have been initiated by the respondent by way of reasonable accommodation and in fact, despite them repeatedly telling the complainant that they were going to carry out a “forced” ergonomic review of the machine, they never, it appeared, intended to carry this out and allowed the complainant to remain out of work while she waited for them to follow through on their “forced” commitment.

When questioned, Mr B, a director of the company, advised that his efforts to conduct this ergonomic review involved asking somebody if they knew anybody who could carry it out and nothing else for which he provided no evidence that he had even done this. He later in evidence admitted that the reason he did nothing was that the intention was to replace the machine but he never once advised the complainant or her representative of this decision and left the complainant in a situation where she was no longer in receipt of sick pay which had expired after approximately 2 weeks, and she was awaiting the respondent’s follow through on their commitment to complete this ergonomic assessment. And in all this time, despite her having previously worked on Machine A and despite her being willing to continue to work for periods of time on Machine A, the respondent never saw fit to engage with her or her representative with reasonable accommodation.

In the circumstances, I am not satisfied that the Respondent gave adequate consideration to what, if any, adjustments could be made in respect to the Complainant’s work requirements. The respondent also discriminated against the complainant with regards to her conditions of employment in terms of failing to allow her to return to work when she was deemed fit to do so with said reasonable accommodation. I find that the Respondent failed to discharge its obligation under Section 16 of the Act, as it failed to fully consider whether or not reasonable accommodation could be made for the Complainant’s disability. It would appear that the Respondent simply did not consider the possible options that may have been available. It also cannot be ignored that perhaps had it done so the Respondent might legitimately have concluded that the Complainant could not be accommodated.

Therefore, having assessed the written and oral evidence and submissions before me, I find that the Complainant has made out a prima facie case that the Respondent did discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to her conditions of employment and in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts and the Respondent has failed to rebut same. She requested a modification of her working conditions namely with regards to working a limited time amount of time on a machine, but was otherwise available and fit for work. The request was pursuant to medical advice received by the complainant. Despite the medical basis of the request, the respondent did not accede to it. Such facts amount to discriminatory acts on the grounds of the complainant’s disability.

In relation to redress, I note that the complainant continues to remains out of work and received approximately 2 weeks sick pay and clearly suffered and continues to suffer upset in relation to the manner in which the Respondent responded to her disability, conditions of employment and her request for reasonable accommodation to enable her to return to work. Taking account of these findings, I make an award of €20,000 as redress for the discrimination incurred by the complainant.

Decision:

CA-00005129-001

I have investigated the above complaint and make the following decision in accordance with section 79 of the Acts that:

I order the respondent pay the complainant €20,000 in compensation for the discriminatory treatment suffered. This figure represents compensation for infringement of her rights under equality legislation in relation to discrimination and does not include any element relating to remuneration, and is therefore not taxable.

Also, I order that within 42 days the respondent undertake a medical assessment of the complainant to assess her fitness to return to work in addition to undergoing an ergonomic assessment of the area with a view to the complainant returning to work as soon as possible allowing for reasonable accommodation.

Finally, I further order, as per Section 82(1)(e) of the Acts, that the Respondent conduct a review of its policies and procedures in relation to equality to ensure that they are in compliance with the Employment Equality Acts with particular reference to the disability ground.

CA-00005129-002 Industrial Relations Act

The complainant withdrew this claim

Dated:   20^th January 2017