DEC-E2017-051

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2017-051

PARTIES

A Receptionist
(Represented by the Independent Workers Union)
Complainant

AND

A Hotel
(Represented by IBEC)
Respondent

File reference: EE/2014/032

Date of issue: 29th June 2017

1. Introduction:

1.1 On the 27th January 2014, the complainant referred a complaint of discrimination on grounds of gender and race arising in her place of employment. On the 2nd September 2015, in accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an 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.

1.2 The complaint was scheduled for hearing on the 7th September 2015 and

adjourned to the 4th November 2015. The complainant was represented by the Independent Workers Union and she was accompanied by her husband. The respondent was represented by IBEC. Four witnesses attended for the respondent. They are referred to in this report as the HR Manager, the Appeal Manager, the Reception Manager and the General Manager.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act.

2. The complainant’s presentation and evidence:

2.1 The complainant was employed as a receptionist with the respondent, a city centre hotel. The complainant was absent from work between March 2007 and August 2013 due to three periods of maternity leave and related sick leave. She was dismissed by the respondent on the 2nd August 2013. The circumstances around the termination of the employment were subject to an Unfair Dismissal claim heard by a Rights Commissioner on the 14th October 2014.

2.2 The complainant’s employment commenced on the 29th May 2005. In the complaint form, the complainant states that her weekly remuneration was €450. On the 19th March 2007, the complainant went on sick leave and this was related to her pregnancy. The baby was born on the 29th June 2007. She was then on sick leave from the end of the maternity leave to the 16th January 2010, when the complainant’s second child was born. A third child was born on the 19th June 2011. Between December 2011 and her dismissal on the 2nd August 2013, the complainant was on sick leave. In the section of the complaint form relating to the specifics of the complaint, the complainant states: “I was dismissed because I was injured in my workplace and the Company never gave me an option for a different position which I had requested. The Company failed to implement guidelines for pregnant employees. The Company never responded to my request to investigate the matter. As a result, heavy lifting, long standing shifts with no regular breaks has had an impact on my health.” The complainant asserts she could have returned to work had the respondent provided adjustments for her. She said that she repeatedly asked for a chair to be supplied at the reception area. She had been given a stool in 2007, prior to taking her first period of leave. She asked for an exemption from heavy lifting and this duty involving pulling out a sofa-bed in a room to make an extra bed. She also asked to be allowed take her breaks as this had been at the manager’s discretion and staff would have to forego breaks in the past. She pointed to one named longstanding colleague who had been facilitated in similar fashion because of her age. This colleague never carried luggage, cleaned or pulled out extra beds.

2.3 In reply to the respondent, the complainant asserted that she had discussed the provision of a chair with the respondent. It had been obvious that the respondent were not willing to provide a chair or to assign her light duties. She was concerned not to do anything that would set back her health. She did not feel that the hotel manager supported her. In further reply, the complainant was adamant that she would have returned to employment had she been allocated a chair and assigned light duties. In correspondence issued on her behalf, the possibility of a staged return was put to the respondent. It was submitted that in early September 2013, it sought to renegotiate the complainant’s contract of employment to include this accommodation. The complainant described the last meeting with the occupational health advisor as positive and that it had “gone right”. She felt that following the consultation, she would be returning to work. The doctor had said that he would take it to the hotel manager to see what they could do. The outcome provided in the letter of 25th October 2013 was completely different. This letter refers to heavy duties being part of the receptionist duties in the hotel.

2.4 In closing comments, the complainant outlined that this claim related to discriminatory treatment on grounds of race and gender as well as the failure to provide reasonable accommodation for the complainant’s disability. It was submitted that the respondent had gone through the motions and never adequately investigated accommodating the complainant’s return. There were documents missing from her personnel file and this had sought to weaken her case.

2.5 In Supplemental Submissions, the complainant outlines that she was subjected to discrimination arising from a condition arising from a pregnancy. She asserts that a colleague had previously been accommodated with a different form of work within their existing contract of employment. This latitude was not afforded to her. She further submits that she was expected to do roles not normally associated with the role of hotel receptionist. These duties were not specified in her contract of employment. During the course of her first pregnancy, the complainant was diagnosed as suffering from Symphysis Pubis Dysfunction. The complainant asserts that she was not allowed rest breaks when in work and also between shifts. These were breaches of the Organisation of Working Time Act. She should have been afforded health and safety leave in 2007. She was not afforded training and development opportunities, as provided by her contract of employment. She raised concerns regarding her place of work in line with her obligations under the Safety, Health and Welfare at Work Act. She contends that she had sought adjustments to her work programme so that she could function as a competent, productive member of staff. She had not sought a renegotiation of her role but to avail of modifications to the role she already had. She relies on the accommodation granted to her colleague but not afforded to her.

2.6 Further in Supplemental Submissions, the complainant refers to the second plank of her complaint, which relates to the specific duties expected of the complainant in the respondent hotel. She had been promised a promotion within the first year of her employment, but this had not occurred. Moreover, the respondent imposed duties on her that were not part of a receptionist’s duties, for example standing for the duration of her shift, moving luggage and assembling sofa-beds in rooms. She states that the provision of a chair would have assisted her in doing her role as receptionist. She comments on the medical report of February 2011 where the medical assessor deems that the complainant is unfit to work in “your reception area” and draws the inference that this is something beyond the normal tasks of a receptionist. The complainant further questions the medical assessment of December 2012 as this assessment was made on the basis of the respondent’s unwillingness to provide the type of regime to allow the complainant to return to work. She refers to the medical assessment of March 2012, which discusses tasks (moving luggage) that were not within the duties of a receptionist. The complainant does not accept that Gannon v Milford Care Centre applies to her case as she only asked for an alternative role when the respondent refused to allow her work as a receptionist. She states that moving luggage was the primary responsibility of a hotel porter. This obligation was beyond the scope of her contract of employment and the duties assigned therein. The complainant stated that the March 2012 medical assessment of her GP concluded that her condition was improving and that she could do light duties, excluding heavy lifting.

2.7 The complainant concludes these Supplementary Submissions by stating that she has been treated unfavourably because of her disability which is inextricably rooted in her gender, i.e. her pregnancy. The respondent ought to have afforded the complainant flexibility and not imposed conditions outside of her contract of employment. In her statement of the 2nd November 2015, the complainant asserts that she believes that the respondent never intended to afford her reasonable accommodation and to recognise her condition as a disability. This led to her dismissal on grounds of incapacity and that this had happened even though she had shown a willingness to return to work and that she had made every effort to do so. She had followed the advice of the respondent HR managers; she had attended doctor appointments as well as going to physiotherapy and Pilates and submitted all medical documentation to the respondent. She had also hired an au-pair to facilitate her return to work and submitted a proposed schedule of hours to the respondent. The complainant also states that following her data access request to the respondent of the 24th September 2015, documents were missing including the notes of her meetings with respondent HR officers, in particular where they discussed the provision of a chair; the documentation she submitted regarding her attendance at Pilates classes and physiotherapy sessions. The complainant refers to the accommodation provided to another member of staff and that the complainant was told “it wouldn’t be fair on the rest of the staff” to give the accommodation she had sought. The complainant says that while the appeal decision of the 22nd November 2013 refers to the respondent’s consideration of light duties, there is no reference to such consideration in any of the documents of the respondent or the medical assessor. The correspondence concludes that the complainant’s return could have been accommodated without the respondent incurring any cost. The complainant submits documentary evidence of her attendance at physiotherapy and at a gym.

2.8 In additional documentation, the complainant includes an account of the events of the 17th March 2007 when she worked an early shift, but had not received rest breaks during the shift. She was pregnant at the time. The complainant’s husband wrote this account and states that the respondent was very unsupportive to his wife. The complainant gives her own account. She states that she has a Degree in Tourism and Business and commenced working for the respondent on the 29th September 2005. She comments on a difficult relationship with a named manager. She became pregnant in October 2006 and during this pregnancy, she developed pain due to a condition arising from the pregnancy. She states that the respondent did not carry out a health and safety assessment, as required by its own guidelines. She should have been offered an alternative role if her role had been assessed as unsuitable during the course of her pregnancy. The respondent also informed the complainant that she could not take rest breaks when it was busy. The reception area was understaffed so it was always busy. She also had to make beds as the respondent was short of chambermaids and this role involved moving furniture in rooms. She had to carry out this role even when she was pregnant. By March 2007, her back problem had become worse and the respondent provided a stool for the time prior to her maternity leave. She was told by a named manager that she should only lean on the stool in quiet periods. The complainant was certified as unfit to work immediately prior to this period of maternity leave.

2.9 The complainant provides copies of medical assessments from her own GPs. On the 8th March 2012, the complainant’s medical assessor stated that the complainant “is well and fit to do light jobs.” On the 28th June 2012, the same medical assessor states that the complainant is “unable to do long time shifts and heavy jobs including lifting and carrying” and says “I would be grateful if you support her by providing light work that will helpful for improvement her condition” (sic). In an assessment of the 3rd October 2013, a different GP from the same practice states “According to her chronic condition she is not able to do long time shifts & heavy job including lifting & carrying. I would be grateful if you support her by providing light work that will be helpful to manage her condition.”

3. The respondent’s presentation and evidence:

3.1 The respondent submitted that the complainant has not made out a prima facie case of discrimination on grounds of race or gender. She had not advanced a claim on the grounds of disability. In terms of the accommodation sought, the complainant had referred to a general receptionist role, and not that of the receptionist role in a respondent hotel. The alternatives had been considered in the medical reports and it was not possible to provide any accommodation to the complainant. Receptionists in respondent hotels do not carry out their duties while seated, although a stool was provided to the complainant prior to her first period of maternity leave.

3.2 The HR Manager gave evidence. She outlined that in January 2012 she wrote to all employees who were then on long-term sick leave. She followed the provisions of the sickness absence policy. The complainant replied to say that she intended to return to work and they discussed which shifts she could do. The complainant did not provide certification to say that she could return. She was referred to her own GP to explore options to bring her back. The medical evidence was never available to facilitate her return to work. Addressing the position of receptionist, she said that there were a great variety of roles associated with the post. It involved checking customers in and out of the hotel and lifting heavy luggage. There were no porters in the hotel and staff would generally dig in when there were many bags. In the complainant’s case, a chair had never been requested by a doctor and this was recorded in the minutes. The HR Manager had referred the complainant to medical assessment and it was never put to the respondent to have the complainant return on restricted duties. It was also the case that there was no prospect of a full rehabilitation after a phased return and she would have expected a rehabilitation plan as part of a return. In respect of breaks, staff were entitled to take breaks and they work in pairs to facilitate this. Staff were in control of their own breaks and this was never an issue. The HR Manager outlined that she had taken a welfare approach in dealing with the complainant and she had always expected her to return. She said that it had always been her intention to facilitate the complainant’s return but her hands had been tied. She referred to renewing the complainant’s GNIB card to facilitate this return. She stated that when the respondent refers an employee to occupational health, they forward a job description and list of duties carried out by the employee in question, as well as the duration and reasons for the absence. They also send on medical certificates received on behalf of the employee. In respect of the complainant, the HR Manager outlined that the complainant had 2.5 years of unprotected leave, i.e. outside of maternity leave.

3.3 The Appeal Manager gave evidence. He said that he was the manager of a sister hotel and had been designated to hear the complainant’s appeal. The appeal hearing was held on the 6th September 2013 and they went through the 11 points raised by the complainant. He outlined that no additional grounds had been provided to show that the complainant was fit for work. He had looked at other roles in the hotel, for example in the office or in accounts. They were only available for six-month periods and he did not think there was a role suitable for the complainant. The provision of a chair would have been easy to accommodate. There had been no discussion about a chair at the appeal hearing. He said that, for him, light duties meant an office-based role where the employee is seated. He outlined that it was the respondent’s policy that receptionists were not provided with seats. He considered the previous medical records, the correspondence and the record of the meeting of the 29th July 2013 in considering this appeal.

3.4 The Reception Manager gave evidence. She outlined that she had been employed by the respondent for 14 years and had also worked as receptionist. She now worked in the respondent’s HR Department for its three hotels. She was involved in the correspondence with the occupational health assessor and had sent him background information. This included length of service, a job description, a list of key tasks for the role and the medical evidence to hand. The respondent would ask for information as to the duration of the absence and when would it be foreseeable for a return to work. She had booked five appointments with occupational health for the complainant. In respect of the assessment of the 25th October 2013, she could not recall the exact questions put to the doctor, but they would have related to her fitness to return and what the complainant was doing to support her return. She had taken the notes of the meetings with the complainant, where they discussed the medical evidence provided and whether the complainant was fit for work in light of the evidence. The intention had been to help the complainant return to work. She said that every job in hospitality is physical and the complainant wanted a job in a different department. Even the reservations and accounts roles had physical aspects. A receptionist must open and close couch-beds, install cot beds and help out in the restaurant. It involved carrying luggage to a storage area and lifting bags up to shelves. On rare occasions, it could involve bringing luggage up to rooms. Large groups posed particular challenges. She said that the reception role was a dynamic role, so it was not be possible for a receptionist to be seated for any length of time. She outlined that it was for staff to their take breaks and they always made sure that breaks were taken.

3.5 The General Manager gave evidence. He said that he was the general manager of the respondent hotel in which the complainant had worked. He started in the role in April 2009. The named colleague had been the reception supervisor and she left this role in February 2011. She had been the supervisor for 10/15 years and managed the shifts and the allocations of tasks. This colleague had an old contract and worked Monday to Friday between 8am and 4.30pm. He was not aware of the tasks she carried out and did not think that any accommodation had been provided to her. She now worked in a different hotel. Her role was now performed by the Duty Manager.

3.6 In closing comments, it was submitted that there was no obligation on the respondent to provide an alternative role to the complainant. There had been nothing in the medical documentation to suggest that any reasonable accommodation was available in order to facilitate the complainant to return to her role as a receptionist. This was a busy, physically demanding role, for example when large groups attended at one time. What the complainant was seeking was a permanent modification, and there was no obligation to do this.

3.7 In submissions, the respondent denies the claims of discriminatory treatment on the grounds of race and gender. It points to the amount of non-Irish male and female employees it employs. The complainant’s employment came to an end as she was not medically fit to carry out her contract of employment. The respondent outlines that the complainant has already pursued the dismissal element of her claim and this was subject to a decision of a Rights Commissioner. The within equality claim and the unfair dismissal claim contain the same text as to the nature of the complaint. It submits that the complainant, through this equality claim, is in effect seeking redress for the dismissal and that the same substantive facts arise in both claims.

3.8 The respondent submits that the complainant was absent from the company since March 2007, a period of six and a half years, and was dismissed on grounds of incapability on the 2nd August 2013. The complainant attended for occupational health assessments on two occasions in 2010 and 2011. She was pregnant for a second time in 2011. The complainant had a third medical assessment on the 20th March 2012 where she was deemed unfit for work. There were two further assessments in 2012 where the assessor concluded that it could not be determined when the complainant would be fit to carry out the type of work for which she was employed. On the 5th July 2013, the complainant was invited to a meeting and asked to present any medical evidence she wished. She was informed that her employment was at risk. This meeting took place on the 29th July 2013 where the complainant said she could undertake light duties. It submits that the claimant was informed that light duties are only provided in a rehabilitative context and not as an alternative to the role that is contracted to be carried out. The respondent dismissed the complainant on the 2nd August 2013. The complainant appealed the decision and provided a letter from her doctor that said she was fit to return to work with light duties. The respondent arranged for the complainant to attend a further occupational health assessment and this concluded that the complainant’s health had not improved and that she remained unfit for work. The respondent upheld the decision to dismiss on appeal. The respondent outlines that the complainant was unable to carry out her contracted role and had asked for an alternative role following a “renegotiation”. She was not fit to return to her role as receptionist given the functions of the role. She was absent for over six years and did not provide a return to work date. The issues raised by the complainant regarding her treatment in the workplace in 2007 were out of time. It submits that the complainant was dealt with fairly.

3.9 The medical assessor engaged by the respondent complied five assessments of the complainant’s fitness to work, each time concluding that she was unfit. In the report of the 11th October 2010, the respondent medical assessor concludes “in my opinion, [the complainant] is unfit for work in the Reception area, which obviously will involve physical work. I have no doubt if she returned to the position with her present back symptoms, it would make matters very much worse.” In the assessment of the 20th March 2012, he concluded “in my opinion, her back problems are related to her three pregnancies and not related to the workplace. Following physical examination today, it is my opinion that she is unfit for work until her back is fully investigated, as confirmed when I examined her on the 11/02/11.” In the report of the 9th July 2012, the medical assessor concludes “In my opinion, I should review the above in three months’ time, but certainly I cannot see that she will be fit to carry out the type of work for which she has been employed in the [respondent] and as mentioned in my previous report, she has not been referred to a consultant orthopaedic surgeon or to a neurosurgeon for expert opinion in this case.” The conclusions of the assessment of the 17th December 2012 state “in my opinion, I would advise that she is not fit for work in [the respondent] for the foreseeable future following five assessments dating from 11/10/2010 to 17/12/2012. As stated above, I note that during my examination today, she confirms that she is avoiding heavy housework. She also confirms that she gets back pain lifting her eighteen-month-old baby and also gets back pain at night… I note in the [physiotherapist’s] reported dated 06/12/2012 that the above is currently getting intermittent symptoms in her pubic symphysis for which she has been provided with a home exercise programme to further strengthen her core muscles, which, in my opinion, would be aggravated in carrying out her occupation in your hotel… Therefore, I would advise that she should not be allowed back to work in [the respondent.]”

3.10 In the occupational health assessment of the 25th October 2013, the doctor refers to the complainant’s medical history and gives details of his examination. He concludes:

“(a) Fitness for work: in my opinion, the above is not fit for the type of work she is employed to do in [the respondent].

(b) In my opinion; the above is unfit for the foreseeable future to return to work.

(c) In regard to her doing something to support herself, she is carrying out the home exercise programme as advised by the physiotherapist, and also carries out her Pilates exercises most days. She has been referred by her GP to a consultant orthopaedic surgeon in [a named] Hospital, but, as stated above, she is on a waiting list.

(4) Outcome: In my opinion, there is very little improvement since my examination on 17/12/2012. In regard to light duties, I confirmed to her that, as far as I am aware, there are no vacancies in this area at present.”

3.11 In supplemental submissions, the respondent outlines that the claims are made pursuant to the grounds of gender and race, and that section 16 of the Employment Equality Acts, and reasonable accommodation, has no application to these claims. The respondent submits that the complainant has not taken a claim on grounds of disability. It submits that the complainant does not dispute that she is incapable of carrying out her contracted role and that she does not dispute that the respondent made adequate enquiries regarding the complainant’s capacity. No medical professional directed that any specific appropriate measures could be taken to render the complainant fully capable to carry out the role. The medical assessments refer to the complainant being unfit to work in the reception area. With regard to reference in the doctor’s letter stating that the complainant is fit for light duties, the respondent asserts that this involved the provision of an alternative role, and there were no vacancies available. The complainant was unfit to undertake her duties as a receptionist and no measures or special facilities were identified which would render her fully capable of carrying out that role. The complainant had herself sought an alternative role. There is no legal requirement on the respondent to provide the complainant with such a role.

3.12 The respondent denies that it discriminated against the complainant on the disability ground. In accordance with section 16(1)(b) of the Employment Equality Act, an employer is not obliged to employ an employee who is not competent and capable of performing the job they were employed to do. The respondent relies on Gannon v Milford Care Centre (DEC-E2004-048) and the following extract at 5.5 “It does not however, in my view, place an obligation on an employer to offer the employee light duties in respect of other positions in the organisation for which the employee was not originally recruited.” It relies on Hegarty Metals Processors Ltd v Kieran Byrne (EDA 1437) and quotes the following extract: “The Act places an obligation on the Respondent to provide the complainant with reasonable accommodation which would enable him to undertake the duties attached to the position for which she was employed… There is no statutory obligation to provide alternative work to the claimant.” The respondent further submits that it had no obligation to provide light duties to the complainant and that a request for light duties was effectively a request for a new job to suit the capabilities of the employees. This goes beyond the obligation to provide reasonable accommodation under the Employment Equality Acts. It asserts that at no stage was the respondent directed by any medical assessment made of the complainant to provide special treatment or facilities which could render her fully capable of her duties. This was confirmed in 2010 by the complainant’s own GP. The occupational health assessor engaged by the respondent reached the same conclusion in reports compiled over the time of the complainant’s absence. It submits that it is clear that the letter from complainant’s doctor is a request for the respondent to provide another role to the complainant and one that was separate to the role she was contracted to do. The medical reports were clear that the complainant was not fit to do the receptionist role. It submits that there were no appropriate measures which could have been taken to render the complainant fully competent and capable of undertaking the duties for which she was employed. The respondent asserted that it had satisfied the test provided by the Labour Court in Humphries v Westwood Fitness EED037. In the period of six years, it had made adequate enquiries to establish the factual position with regard to the degree of impairment and its likely duration. The medical reports were such that no reasonable accommodation could have been provided to render the complainant to be fully capable to carry out her contracted duties.

4. Findings and reasoning:

4.1 The complainant is a tourism professional and was employed by the respondent as a receptionist. She commenced her employment on the 29th May 2005 and this came to an end on the 2nd August 2013. The complainant appealed the respondent’s decision to dismiss her and the decision was upheld on appeal. She further challenged the dismissal by pursuing a claim for unfair dismissal via the Rights Commissioner service. On the 14th October 2014, the Rights Commissioner held that the dismissal was not unfair and that it was a decision made on the grounds of the complainant’s incapacity.

4.2 The first issue to address is the contours of the claim. It is clear that the dismissal is outside of the purview of this hearing. This is a matter already adjudicated upon following the claim made pursuant to the Unfair Dismissals Acts. What remains is the treatment afforded to the complainant regarding her conditions of employment. In the complaint form, the complainant selected the boxes of ‘gender’ and ‘race’ and provides the following narrative of her complaint: “I was dismissed because I was injured in my workplace and the Company never gave me an option for a different position which I had requested. The Company failed to implement guidelines for pregnant employees. The Company never responded to my request to investigate the matter. As a result, heavy lifting, long standing shifts with no regular breaks has had an impact on my health.”

4.3 At the first hearing on the 7th September 2015, I indicated to the parties that the complaint incorporates the issue of reasonable accommodation as well as the claims of discrimination on grounds of gender and race. This was clearly enunciated in the narrative of the complaint form. I adjourned the hearing to allow the parties to make submissions on the issue of reasonable accommodation and discrimination on grounds of disability. The parties availed of this opportunity and I note that the respondent maintained in supplemental submissions that the hearing should be confined to the grounds of gender and race.

4.4 In assessing whether it is appropriate to include the question of reasonable accommodation within the purview of this claim, I have regard to the following dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal and others [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

4.5 I also have regard to the fact that the complaint form completed by the complainant is a non-statutory form and designed for users who are not professionally trained advocates. The key aspect of this case is that the complainant referred directly to accommodations she indicates she sought (an assertion contested by the respondent). Given that such accommodations were front and centre of the complaint, and following the granting of the adjournment to make additional submissions, it is appropriate to consider the question of reasonable accommodation and section 16 of the Employment Equality Acts in the determination of this complaint.

4.6 Before considering the case in detail, it is worth setting out the relevant legal test. InSouthern Health Board v Mitchell [2001] E.L.R. 201, the Labour Court considered the evidential burden imposed by section 85A of the Employment Equality Acts in the following terms:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
…
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

4.7 In Cork City Council v McCarthy (EDA 21/2008), the Labour Court held:
“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

4.8 The complainant is a citizen of Mexico and resident in Ireland for some time. She asserts that discrimination occurred on the race ground. The respondent met this element of the claim by pointing to the multi-national makeup of its staff. At the hearing and in submissions, the complainant did not press the assertion of discrimination on grounds of race. Accordingly, I find that the complainant has not pointed to primary facts of such substance to raise a prima facie case of discrimination. The claim on the race ground fails.

4.9 In addressing the complaint of discrimination on grounds of gender, it is necessary to consider the limitation periods provided in the Employment Equality Acts. Section 77 of the Employment Equality Acts provides a limitation period of six months within which claims must be made. This is extendable, with reasonable cause, to 12 months. Section 77(5)(a) of the Acts provides:

“(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.”

Section 77(6A) provides: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) [not relevant]

(iii) [not relevant].”

4.10 In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5) and (6A),

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.”

Also in Hurley, the Labour Court commented on section 77(5) as follows:

“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

4.11 It is the case that the complainant was not in work from the 19th March 2007 to the end of her employment on the 2nd August 2013. What is striking, however, is that this period includes three periods of maternity leave. In submissions, the respondent categorised this as one extended period of sick leave, but, fairly at the adjudication and at the meeting of the 29th July 2013, it acknowledged that there were also three periods of maternity leave and possibly one period of health and safety leave (between March and June 2007). In passing, I note that the complainant would have been entitled to take 16 weeks of additional maternity leave pursuant to the Maternity Protection Acts on top of her entitlement of 26 weeks for each period of maternity leave. Given that the complainant could not resume work, it is not clear what occurred at the end of each period of maternity leave or in the period of March to June 2007 when the complainant could have been on health and safety leave. Taking these periods of protected leave together and the complainant’s case at its height, the complainant was on protected leave for 138 weeks and on sick leave for 191 weeks between the March 2007 and August 2013.

4.12 The complainant asserts discrimination on the gender ground, specifically in relation to her pregnancies. The complaint was referred to the Equality Tribunal / Workplace Relations Commission on the 27th January 2014. The Maternity Protection Acts provide for 26 weeks of maternity leave and 16 weeks of additional maternity leave. Taking the last pregnancy, the end of any period of additional maternity leave was 40 weeks after the 19th June 2011 (taking two weeks away from the date of “confinement” as required by section 10). The complainant’s entitlement to maternity leave or additional maternity leave ended on the 18th March 2012. Any claim made on the gender ground ought to have been made within 6 months of the 18th March 2012 (extendable to 12 months with reasonable cause). At this time, the complainant did not go back to work because of her ongoing health issues. She later sought to return to work and asserts that she should have been accommodated by the respondent.

While I accept that the complainant suffered physical health issues resulting from her pregnancies, I do not see how she has established a prima facie case of discrimination on the gender ground in how the respondent dealt with her possible return to work in 2013. It would be enough for a respondent to show that it treated all employees on sick leave in the same way. Even if such treatment was held to be less than satisfactory, the fact of all employees being treated the same would defeat a claim of discrimination on grounds of gender. The complainant asserts that she was the subject of poor treatment in 2007 when she was last physically in work. As submitted by the respondent, these issues are clearly outside of the limitation period set out above. I also find that these acts do not form part of a regime, rule, practice or principle as set out in the Hurley decision. Taking these findings, the claim of discrimination on grounds of gender fails.

4.13 This leaves the claim of reasonable accommodation. The complaint to be addressed is that set out by the complainant in the narrative of her complaint form and expanded upon in evidence. She asserts that she could have returned to work in the middle of 2013 had reasonable accommodation been provided to her. Medical documentation submitted on her behalf finds her fit to work with light duties. The complainant pointed to particular forms of accommodation, such as the provision of a stool and the removal of heavy lifting duties. The respondent asserts that it complied with its obligations under section 16 of the Employment Equality Acts in assessing the complainant’s impairment and in considering accommodation to allow the complainant to fulfil her contracted role.

4.14 Section 16 of the Employment Equality Acts, as amended, provides

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

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

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

…

(3) (a) For the purposes of this 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.

(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.

(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.

(4) In subsection (3)—

…

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”

4.15 In respect of an employer’s obligations to provide such appropriate measures to an employee with a disability, the Labour Court, in Humphries v. Westwood Fitness Club [2004] E.L.R. 296 held:

“This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. 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 and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. 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, section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. 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.”

4.16 I make the following findings in relation to whether the respondent complied with its obligations under section 16 of the Employment Equality Acts. It is certainly the case that the complainant was out on sick leave for a protracted period of time. The respondent referred the complainant to six medical assessments and supplied the relevant reports as part of this case. It also invited the complainant to seven welfare meetings. At the hearing, a conflict of evidence arose between the parties. This related to whether the complainant had asked for accommodations to allow her return to the role of receptionist, including the provision of a stool and that she not do heavy lifting. The complainant asserts that she repeatedly asked for these accommodations; the respondent denies that either the complainant or her doctor had requested for these to be provided. It asserts that it had looked into light duties, i.e. an alternative desk-based role but none were available. I am satisfied, on the evidence, that in 2013, the complainant raised the possibility of a stool being provided to her to allow her return to work and that one had been provided to her prior to the start of her first period of maternity leave. This is addressed, for example, at page 7 of the appeal minutes where the historical discussion is cut off. The request had also been made on her behalf that she return to “light duties”.

4.17 Taking the evidence as a whole, I find that the respondent did not comply with its obligations under section 16(3) of the Employment Equality Acts. This is the second stage outlined by the Labour Court in the Humphries case and which provides that once an employee is assessed as not being fully capable for their role, the question arises of what special treatment or facilities are available to make the employee fully capable of doing the role. While the respondent referred the complainant to medical assessments, I find that the respondent closed its mind to providing any special treatment or facilities to render the complainant fully capable of the role as receptionist. In reaching this finding, I note the emphasis of the respondent to the complainant having to do every aspect of the role, including standing and heavy lifting. I note that the respondent medical assessments very much looked at the role of receptionist without any such special treatment or facilities. This is most strikingly put in the assessment of the 25th October 2013 where it records that the complainant “is not fit for the type of work she is employed to do in [the respondent].” At this time, the complainant’s own medical assessor said the complainant was fit to return to work where light duties were provided. While the employer is absolutely entitled to make its own assessment of an employee’s fitness to return, the respondent, in this case, fell down as it restricted its consideration of light duties to other roles, for example in accounts or in the office. It did not specifically examine providing special facilities or treatment to the receptionist role in order to allow the complainant return to the role. I note that medical assessment of the 25th October 2013 asserted “In regard to light duties, I confirmed to her that, as far as I am aware, there are no vacancies in this area at present” and the evidence of the appeal manager was that he looked at light duties in the context of seated, office roles. I also note the evidence of the Receptionist Manager regarding the physical nature of the receptionist role and I note that it may have followed from any examination of a modified receptionist role that it was not feasible. The breach of section 16(3) occurred because this examination did not take place at all. The respondent had asked the question as to whether the complainant was fully capable to do the role of receptionist and its medical assessor said ‘no’. The respondent did not ask the further question required by section 16(3) of what special facilities or treatment would have rendered the complainant fully capable of working as a receptionist in its hotel. This examination could have included the provision of a stool or re-distributing tasks associated with the role; options that squarely fall within the scope of section 16. My role is not to determine whether such special facilities or treatment would have been feasible; it is to assess whether the respondent met its obligation under section 16 in considering such appropriate measures.

4.18 Having found that the respondent did not meet its obligations under section 16 of the Employment Equality Acts, the next issue to consider is redress. It goes without saying that the fact of the complainant being dismissed cannot be considered in assessing redress. As emphasised above, all aspects of the complainant’s dismissal were addressed in her Unfair Dismissal claim. Many of the other issues raised by the complainant were out-of-time. These include not getting breaks in 2007 and the failure to do a risk assessment at this time. I have found that there is no breach of the Employment Equality Acts on grounds of either race or gender that is within time. Taking that the sole breach to be assessed is the failure to consider reasonable accommodation pursuant to section 16 of the Employment Equality Acts, I make an award of €7,000.

5. Decision:

5.1 I have concluded my investigation of this complaint. Based on all of the foregoing, I find, pursuant to Section 79 of the Employment Equality Act, that the complainant was the subject of discriminatory treatment on grounds of disability.

5.2 In accordance with Section 82 of the Act, I order the respondent pay to the complainant €7,000 in compensation. The award 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 (as amended).

_______________________________

Kevin Baneham

Adjudication Officer / Equality Officer

29th June 2017