ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000557

Complaint for Resolution:

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: Stephen Bonnlander

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 to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant states that she commenced employment with the respondent as a manufacturing operative on 11 August 2005. She fell ill with depression in 2014 and was absent from work from 4 November 2014 to 29 August 2015, save for five days in January 2015.

The complainant stated in evidence that her condition was impervious to medication, and that she manages it as far as possible with healthy lifestyle choices such as healthy food, nutrition supplement and exercise. When she went on sick leave in November 2014, by her own evidence she had already been depressed for 18 months. She stated that she felt stress in the workplace had triggered the depression.   She also stated that when she went back to work for a week in January 2015, she felt that she had “no handle on it at all” and needed to go back on sick leave.

At the heart of the complainant’s complaint, which she also confirmed in her oral evidence, is that the work pattern which the respondent company operates and which is called a “five-cycle swing shift”, causes her to develop a significant sleep debt, which in turn greatly aggravates her depression.   The complainant described herself in her evidence as “constantly jetlagged”.

The shift cycle works as follows: In week 1, the worker works four 12.25 hour day shifts. He or she is off for three days. Week 2 is a “flexi week” in which the worker is obliged to be available for 23.5 hours in total. In week 3, the worker has four days off and works three night shifts of 12 hours each, and one night shift immediately following in week 4.   After three days off, the worker works three day shifts. The first day in week 5 is off, followed by three night shifts again.   The cycle then starts again.

The complainant returned to work on her previous shift cycle on 29 August 2015, mostly due to quite significant financial concerns which had arisen for her. Her entitlements under the respondent’s sick pay scheme had been exhausted in February 2015. However, she stated that she found working the shift cycle very difficult even then.

The respondent has a few positions which are day shift work only. The complainant applied for such a position in March 2015, but was unsuccessful. The complainant stated both in her submission and in oral evidence that her GP recommended that she be accommodated with day shift work by the respondent.   It is the complainant’s contention that not being so accommodated by the respondent amounts to lack of reasonable accommodation within the meaning of S. 16 of the Acts.

Respondent’s Submission and Presentation:

The respondent carries on the business of manufacturing semiconductors and microchips. It states that its production operates 24/7, and that the complainant, as part of the manufacturing team, works the five-cycle swing shift outlined above. It does not dispute that the complainant suffers from depression, or that depression is a disability within the meaning of the Acts.

The respondent states that the complainant was reviewed by its own occupational health physician on 3 December 2014 and on 4 February 2015. On this latter occasion, the occupational health expert reported to the respondent that the complainant would be unfit for work for at least 12 months, but could then return to work on day shifts, if she could be accommodated.   The respondent subsequently held a meeting with the complainant and advised her that there was no day shift role available for her.  It stated to the complainant that other possibilities would be explored.

In his oral evidence, the respondent’s HR manager stated that there existed a company-union agreement dating back to 1976 on transfers to day-only shifts. There is great competition for these shifts, which are quite limited in number, among the respondent staff, and hence a transfer system was established to ensure fairness in access to these jobs. The complainant, in response to a question from the respondent’s representative, stated that she had been unaware of this arrangement.  The HR manager said that he did not refer the complainant to the union.

The HR manager further stated that a 12-month transfer of the complainant to a day-only shift would have necessitated hiring a replacement for her, and that she would have needed additional training to meet the requirements of the position.   He stated that “disability would not put you on top of the list automatically” and that instead, the skill-set, training and motivation of applicants are examined.   He did accept, however, that he was aware of the request to accommodate the complainant with day-only shifts from the complainant’s GP.

In terms of providing accommodation for workers with disabilities, the HR manager stated in evidence that this depends on the burden placed on the company. Whilst he estimated that the respondent’s worldwide sales revenues would be around 3-4 billion US dollars, he also stated that the Irish location, despite having run since 1976, was under threat, and that the respondent was what he termed a “classic multinational” in that regard.

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 issue for decision is whether the respondent refused the complainant the reasonable accommodation for her disability or whether such accommodation would have imposed a disproportionate burden on the respondent.

Legislation involved and requirements of legislation:

Section 16(3) of the Employment Equality Acts states that

(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.

Subsection (4) states that

“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” [Emphasis added]

Considerations of the Adjudication Officer:

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

I am satisfied that by sending the complainant repeatedly to their occupational health specialist and meeting with the complainant on the results, the respondent did fulfil the obligation set out by the Labour Court in A Health and Fitness Club v. A Worker, EED037, to obtain full information about the complainant’s disability.   The respondent had learned both from their own specialist and from the complainant’s GP that the complainant needed to be accommodated with day-only shift for a period of time.

However, during the hearing of the complaint it became clear that the respondent treated the matter as a normal transfer request in line with its union agreement rather than as a statutory obligation. It also mentioned the training necessary for the complainant to work these shifts. However, it is clear from the section of the Acts quoted above that these are rights which accrue to the complainant as a person with a disability.   It was therefore wrong of the respondent to treat the medically identified need of the complainant to be accommodated with daytime work for a time as being on par with its normal transfer policy and I am satisfied that the respondent did refuse the complainant the reasonable accommodation she is entitled to pursuant to the provisions of Section 16 of the Employment Equality Acts, and has therefore established a prima facie case with regard to her complaint.

The questions which remains to be answered it whether the saver in Section 16(3)(c) avails the respondent, that such a measure would have imposed a disproportionate burden on it. In this context, I invited additional observations from both parties with regard to the case Reilly v. United Parcel Service DEC-E2013-077. These were received on 6 and 12 December 2015, respectively.

Counsel for the complainant stated that in his submission that in the within case, the accommodation needs of the complainant had been clearly identified, and that even an emphasis on high operational efficiency did not entitle the respondent from refraining from its obligations to provide reasonable accommodation.   Counsel further points out that in light of the size and turnover of the respondent, the complainant should have been accommodated.

The respondent’s representative stated that there is only a limited number of day shift positions available, that two positions became vacant in March 2015 and the complainant applied for one of them but was unsuccessful, and that one of the positions went to another worker with a disability. The respondent’s agreement with the union and the relevant Labour Court recommendation under the Industrial Relations Acts were cited as a reason why the agreement had precedence over the complainant’s rights. The respondent’s supplemental submission does not really address the financial position of the respondent beyond what was stated in oral evidence at the hearing of the complaint.

In order to address these points, I will start with the agreement which the respondent company had with its trade union. I note that a Labour Court recommendation under the Industrial Relations Acts exists with regard to same, however, there is a binding decision from the Court of Appeal in Mullally and ors v. The Labour Court and Waterford County Council [[2016] IECA 291], in which Hogan J unequivocally states in his conclusion that

All of this is to say that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences, then, of course, the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different. As this, however, is not the case, I entirely agree with the conclusion of Noonan J. that the recommendation of the Labour Court pursuant to s. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates.” Nor can it be said that such a recommendation creates any form of res judicata or any other form of binding resolution. [Emphasis added]

In light of this decision by the superior courts, I am satisfied that the agreement in question does not take precedence over the respondent’s statutory obligations towards the complainant.   The salient point from Reilly v. United Parcel Service which in my opinion also applies in the within case is that the statutory right of a disabled worker to reasonable accommodation is very much not a grace-and-favour affair which depends on whether a suitable alternative position happens to come up just at the right moment when it is needed, and for which the disabled worker has to compete with others.   The right to reasonable accommodation is not dependent on any such operational contingencies, but is limited only by the financial resources of a respondent and whether the measures identified as necessary place a disproportionate financial burden on a respondent employer.  

In terms of whether it would have been a disproportionate financial burden on the respondent to provide training to the complainant to perform a day-shift role, and to hire a replacement for her on the five-cycle swing shift for 12 months (as originally recommended) or less (as per her actual return to work on the five-cycle swing shift in late August 2015), I note that the respondent did not provide any evidence specific to the financial situation of its Irish operation to make such a case. I am therefore left with the respondent witness’s evidence that the respondent’s worldwide revenue is between three and four billion US dollars, and that the pay of the complainant on day shifts, for the time she was out sick after her sick pay ran out, would have been about 10,000 Euro.   Whilst the complainant’s replacement on the swing shift would have earned a shift allowance, and training costs might also have accrued, I am unable to accept, on the evidence before me, that the burden on the respondent should have been disproportionate.  

I therefore find that the defence set out in S. 16(3)(b) and (c) does not avail the respondent and that the complainant is entitled to succeed.

Decision:

Based on all of the foregoing, I find pursuant to S. 79(6) of the Employment Equality Acts 1998-2015 that the respondent discriminated against the complainant on the disability ground, by failing to provide her with reasonable accommodation pursuant to its obligations as set out in S. 16 of the Acts.

In accordance with Section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €20,000, which is the equivalent of just under 9 months’ pay, in compensation for the effects of discrimination. 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 1997 (as amended by Section 7 of the Finance Act 2004).

Dated:   23^rd March 2017