ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00000520

Parties:

Complaints:

Date of Adjudication Hearing: 30th June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

The complainant referred three complaints to the Workplace Relations Commission pursuant to the Employment Equality Acts. The first application was made on the 30^th July 2015 and predates the enactment of the Workplace Relations Act, 2015 on the 1^st October 2015. It bears the reference ET-158490-EE-15. The second and third complaints were made on the 10^th November 2015 and the 4^th April 2016 and post-date the 1^st October 2015. They bear the complaint references of CA-00000765-001 and CA-00003647-001. The three complaints were combined to be heard at this one adjudication (reference ADJ-00000520) and this report is issued in respect of the latter two complaints.

The complainant is a warehouse operator and works for the respondent, a supermarket chain, at a large distribution centre. The claims relate to discriminatory treatment on grounds of disability, in this case, a degenerative eye condition.

The complaints were scheduled for adjudication on the 30^th June 2016. The complainant was in attendance and was represented by Eamonn O’Hanrahan, solicitor. Tiernan Doherty, IBEC appeared for the respondent and five witnesses attended to give evidence. They were two shift managers, the training manager, the HR manager and the Distribution Centre manager.

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant asserts discrimination and victimisation on grounds of disability and the respondent denies the claim.

Summary of Complainant’s Case:

The complainant commenced employment with the respondent in April 2007 and remains in the respondent’s employment. He works in a distribution centre operated by the respondent. The complainant asserts that the respondent did not provide reasonable accommodation for his disability, a degenerative eye condition, and has discriminated against him with regard to his conditions of employment. He also claims victimisation.

The complainant returned to work from a period of sick leave on the 1^st March 2016, taking up a clerical role in the same workplace. This occurred in the ninth week of 2016 and he had just exhausted his entitlement of 8 weeks of sick pay for 2016. In respect of 2015, the complainant went on sick leave on the 15^th June 2015 and had suffered loss of income after his sick pay for this year expired in August. The respondent had since paid all his salary for 2015 and this payment was made in December 2015. He said that while the respondent had later addressed his financial loss, he received no income between the 24^th or 26^th August and the end of December 2015. He became indebted in order to pay rent and to make ends meet. He took out an overdraft and could not apply for a mortgage as he could not demonstrate income for this period.

At the start of his employment with the respondent on the 14^th April 2007, the complainant worked as a general operative. In 2009, he was appointed shop steward and between 2011 and 2014, he worked on the floor as a health and safety trainer. This was a very different role and much less physically demanding than his previous role, in particular in relation to picking work. He had been reassigned to picking roles in the run-up to Christmas in both 2013 and 2014. There was no problem in 2013, but in 2014, he had encountered performance issues because of the onset of the degenerative eye condition. In October 2014, he received a diagnosis of having the degenerative eye condition when he attended a clinic in his native country to have routine corrective laser eye treatment. The complainant obtained a further, more detailed medical assessment in his native country. Picking work was contraindicated as the work would make his condition worse.

On the 15^th December 2014, the complainant met with his shift manager and the issue of his eye condition was discussed. He had spoken with a doctor in his native country who had supplied him with written documentation about his condition. The shift manager said that he needed more information and asked him to consult an Irish doctor. They then went to HR and continued their discussion in a more formal setting. The complainant referred to the minutes of the meeting supplied by the respondent and said that there should be more than the one page of minutes exhibited. He said that he had given his medical documentation to the respondent and they had been copied and copies retained by the respondent. They agreed that he would take the next day off to obtain a medical consultation in Ireland. He continued in work as he was helping with a Christmas staff event and spent the day off trying to obtain a prompt assessment. He made enquiries and established that it would take some months to secure an appointment with an Irish consultant. On his return to work, he spoke with the shift manager and had asked to be referred to occupational health. He said that the eye drops were fine. At this time, the complainant had been working on the pick assembly line for six weeks without rotation. This was unusual as it was intensive work, causing him to have a sore head. This, in turn, lead to performance issues, i.e. not meeting the pick targets set by the respondent. He said that he repeatedly raised this issue orally with the shift manager.

The complainant returned to the training role in February 2015, as the respondent had engaged new starters. He was able to do some lifting, in order, for example, to demonstrate proper techniques to colleagues. He could not do the time pressured and sustained lifting required in picking. He received a further medical assessment in April 2015, which detected that his left eye had become much worse.

In June 2015, the complainant was subject to a disciplinary process in circumstances where a video he had recorded on the floor had been uploaded to a social media website by a colleague. He was issued with a final written warning in a letter of the 24^th June 2015. Included in the sanction was that he would no longer be engaged in training duties and would work on the floor. This role would include picking. He was unhappy with this element of the sanction as he could not cope with the demands of the picking work. He raised this with the shift manager who said that the complainant had to be fully fit for his duties. The complainant then went on sick leave and provided medical certificates. As well as his GP and doctors in Poland, he had also been referred by the respondent to occupational health doctors and to consultants. The occupational health reports identify that the complainant was not able to engage in heavy lifting or drive moving and handling equipment. The condition is identified as being long-term and they suggest that the complainant be assigned to any available alternative roles. The complainant said that he had missed one appointment as he over-slept through stress. He attended a re-arranged appointment some weeks later.

The complainant had attended welfare meetings with the respondent and at one such meeting, he was offered the clerical role that he later commenced in March 2016. He acknowledged that in December 2015, he was offered a role in a store but was not in a position on health grounds to take up this role.

The complainant outlined that he should have been referred to occupational health on first raising his eye condition in December 2014. While the issue of the final written warning was not an equality issue, his reassignment in June 2015 to picking duties meant that he could not do his job. The respondent should have acted promptly in providing alternative roles to the complainant, for example the clerical role he was now doing or another role that did not involve heavy lifting.

In cross-examination, the complainant acknowledged that his contract of employment described him as a general operative and replied that he had worked in a full-time training role from 2011. It was put to the complainant that the respondent was not aware of the extent of the disability prior to June 2015. He replied that in the meeting of December 2014, he had raised the severity of his condition with the shift manager as well as the delay in getting an appointment. The medical documents he provided to the respondent were handed back to him and he was given a day off to explore medical options regarding his condition. In February 2015, he returned to a training role and there was no need to further raise his eye condition, even though it had become worse by April 2015. This became relevant when his training duties were taken from him in June 2015. He outlined that there had been three clerical roles with the respondent available during the course of 2015.

Summary of Respondent’s Case:

The respondent denies the claim and states that it only became aware of the extent of the complainant’s disability in June 2015. It denies that the complainant had occupied a role as health and safety trainer or that he had been transferred from this role.

The shift manager gave evidence. He outlined that the complainant had informed him of his eye condition and that he had consulted an optician. The complainant said that he could not do heavy lifting and produced a diagram of the eye to explain his condition. This was not on headed paper. The shift manager suggested they go up to HR and they continued the meeting with the HR manager. At this meeting, the shift manager said that he required more information about the condition and suggested that the complainant take the day off to get a medical assessment of the condition. When the complainant was back in work, the shift manager approached him to ask how everything was. The complainant replied that he had been to see an optician and that everything was fine and that he was using eye drops. There were no further conversations regarding his eye condition. The shift manager outlined that there were no full-time trainers in the distribution centre and that the complainant’s role included the picking role and driving a fork-lift. In June 2015, the HR manager had asked that the complainant no longer be assigned training duties and the complainant went back to operational duties. In cross-examination, the shift manager acknowledged the importance to this case of the meeting of December 2014 and said that he had not taken notes. He said that there should be a second page of minutes. He said that the follow-up to this meeting had been informal and occurred when he approached the complainant. The complainant was vague about his eye condition and said that he had not been to a doctor. He outlined that the complainant provided training to new starters and refresher training. He had not been aware of the complainant’s good record prior to his appointment to the training role. In respect of mobile phones, he said that staff were not allowed to use phones on the floor and that staff were not asked to record colleagues as part of training.

The training manager gave evidence. She outlined that her duties included identifying training needs of staff and to work with managers to roll out training. There were different training needs to be addressed and they were scheduled at the start of each week. They were scheduled to fit in with operational demands and the due date of each training requirement. There was refresher training for existing staff and specific training for new starters, including following up with new members of staff to ensure that they were able to carry out their duties. She gave an outline of the training delivered by the complainant to staff. In respect of the meeting of December 2014, the shift manager had asked her to sit in on a meeting with the complainant. The complainant raised the issue of his eyes and said that he could not do heavy lifting, mentioning going to the gym. The complainant said that he had been to see someone and the shift manager asked that the condition be assessed. She had followed up on this issue with the shift manager, who said that the complainant had told him of the eye drops. She did not know why a page of minutes had not been included in the documentation submitted. She said that the complainant had produced a sheet of paper at the December 2014 meeting, but could not remember whether she had photocopied anything. She also said that the complainant might have made reference to seeing someone in his native country about his condition. In cross-examination, the training manager said that there were three shifts working in the distribution centre and four or five trainers on each shift. Different members of staff provided elements of training.

The second shift manager gave evidence. He outlined that he heard the complainant’s appeal to the sanction imposed during the June 2015 disciplinary process and also attended welfare meetings with the complainant. He said that he and the complainant agreed that the use of the mobile phone on the floor had been a breach and that both the final written warning and the removal of training duties were just. The complainant had raised his eye condition as part of the appeal and this caused the shift manager to wonder whether the complainant was fit for work. He referred the complainant to occupational health and various reports were provided to the respondent. A named professor provided a detailed report in January 2016 and the complainant was placed in an alternative role in March 2016. An offer of a role in a store had been made in December 2015, but this was not acceptable to the complainant because of his health. The shift manager outlined that he had upheld the original disciplinary sanction in and around December 2015, although this letter was not in the papers presented by either party to the adjudication. In cross-examination, the shift manager acknowledged that the complainant had been out of work between June 2015 and February 2016 and that he had first sought to obtain medical advice regarding the complainant’s situation. Occupational health had, in turn, sought specialist opinion on the complainant’s condition. The complainant had also missed two appointments, delaying this process. In this time, the respondent engaged with a named store to explore a role there. The complainant declined this, on the advice of his GP. The letter from the named specialist made clear that the complainant could not go back to a role on the floor and a clerical position was found, following the retirement in February 2016 of a colleague.

The HR manager gave evidence. She was involved in the welfare meetings and liaised with occupational health regarding the issues raised by the complainant. She received the final medical documentation from the complainant on the 20^th October 2015 and forwarded this to occupational health. She acknowledged that the report of the 30^th September 2015 had been provided to the respondent and that she needed the full picture to secure an alternative role for the complainant, in particular because any role in retail involves an element of manual handling. She was engaged in finding alternatives and sought solutions where the distribution centre would foot the cost of re-assigning the complainant out of the centre, for example to a store. She had liaised with the manager of a large store close to where the complainant lived. She was aware of the pending clerical role as the existing staff member was retiring in February 2016. In cross-examination, it was put to the HR manager that the letter of the 30^th September 2015 suggests securing alternative roles for the complainant. She replied that at this time the appeal was still live, so it remained open for the complainant to return to a training role. She accepted that the complainant needed to be provided with accommodation but she had required more information. She spoke at length with a named occupational health doctor, who had questioned whether the impact of the condition on the complainant’s peripheral vision meant that he could not attend the workplace at all. Following the later advice of the specialist, it was clear that the complainant could work in and around the floor, in a modified role. While the role was labelled clerical, it involved visiting sites throughout the distribution centre, to follow up on issues. This role would typically involves an element of driving and handling, but this had been removed from the complainant’s duties. The HR manager said that this was a complex case and the centre’s first experience of such a problem. They had had a second, less complex case that they were able to accommodate faster.

Findings and Conclusions:

The complainant is a longstanding employee of the respondent. The complainant’s job title is that of general operative. It was accepted by the parties that he also fulfilled specialist roles, for example delivering health and safety training to new and existing staff. He claims discrimination on grounds of his disability, a degenerative eye condition, in particular that the respondent did not provide reasonable accommodation or did not do so with sufficient timeliness. The respondent denies the claim and states that it was not aware of the extent of the complainant’s disability until June 2015 and provided a new role to the complainant as soon as it could.

This adjudication dealt with complaints made on three separate dates: 30^th July 2015, 10^th November 2015 and 4^th April 2016. As one complaint pre-dates the enactment of the Workplace Relations Act on the 1^st October 2015, it is subject to a separate report. The second and third complaints are subject to the report in ADJ-00000520. I acknowledge that the multiple complaints were submitted on behalf of the complainant in order to protect his position against any time limitation issue. The Employment Equality Acts provides a six-month limitation period for complaints to be made. The first set of events occurred in December 2014 with further issues arising in June and August 2015. In December 2015, the respondent paid the complainant his salary for the period from August 2015, when the complainant was on sick leave and had exhausted his entitlement to paid sick leave. He was later provided with an alternative role in early 2016, which he commenced on the 1^st March 2016.

Before addressing the conflicts of fact and the legal issues arising in this case, it is worth noting the good faith of the parties. The complainant is a longstanding employee of the respondent and has had to face the unfortunate situation of a serious, degenerative eye condition. In December 2015, the respondent paid the complainant’s wages due from August to December 2015, even though the complainant had exhausted his contractual entitlement to sick pay for that year. I also note that in March 2016, the complainant commenced a new role and was in that role as of the adjudication hearing.

In respect of the issues in dispute in this case, I am inclined to address the conflict of fact regarding the meeting of the 15^th December 2014 in favour of the complainant. Having considered the evidence of the parties, I find that the complainant made a detailed disclosure of the diagnosis of the degenerative eye condition. It was serious enough to escalate to HR and a more formal meeting where minutes were taken. I am satisfied that the complainant submitted documentation regarding his condition to the respondent. While I accept the complainant’s evidence in this regard, I also note that there was no immediate consequence regarding his ability to perform his role at work. While there had been performance issues during his time doing picking duties in Christmas 2014, the complainant returned to his training duties in early 2015. It was only in June 2015 that the disability issue came to the fore again, when a disciplinary sanction required the complainant to return to picking duties. The complainant challenged the disciplinary sanction, and there was toing and froing over the nature and extent of the complainant’s disability.

The next issue to address is the three complaints submitted by the complainant and their overlap. Section 77 of the Acts provides for a limitation period within which claims must be made. 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].”

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.”

It follows from reading sections 77(5) and 77(6A) together, and taking account of the decision in Hurley, the complaint of the 4^th April 2016 (reference CA-00003647-001) captures all elements of the complainant’s claim of discrimination. I find that pursuant to section 77(6A), the temporal scope of the claim commences in December 2014 and continues to the date of the application, i.e. the 4^th April 2016.

It was not disputed that the complainant suffers from a disability within the ambit of the Employment Equality Act. Section 16 of the Employment Equality Act imposes an obligation on employers to provide reasonable accommodation for employees with disabilities. It provides as follows:

                “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”

In respect of an employer’s obligations to provide such appropriate measures to an employee with a disability, the Labour Court, in Humphreys 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.”

Applying the statutory provisions and the above case law to this case, I note that the complainant made the respondent aware of the serious nature of his degenerative eye condition in December 2014. Because the complainant was taken off picking duties in early 2015, this was not an immediate issue of concern and only became so because of the disciplinary sanction imposed in June 2015. While I find that the respondent made bona fide attempts to assess the complainant’s return to work, I note that the time delay in completing this assessment (even with the delays caused by the complainant) and the initial approach of the respondent that the complainant was required to fulfil all duties in order to return to work, irrespective of any appropriate measures that may have been available. I acknowledge the back payment to the complainant of wages between August and December 2015 and the later provision of a suitable, alternative role. Taking account of the delay in seeking such an alternative role and the loss incurred by the complainant in not working in the latter half of 2015, I make an award of €3,500. I take account of the bona fides of both parties and I accept the respondent’s evidence that it had not previously faced an issue of this nature in the distribution centre.

For the sake of completeness, I find that the claim of victimisation does not succeed as the respondent ceased paying the complainant in accordance with their sick pay policy and no other acts could be said to be acts of victimisation for the complainant raising his entitlements under the Employment Equality Acts or for making the within complaints.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make decisions in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.

CA-00000765-001

I find that the issues raised in this complaint of the 10^th November 2015 are included within the purview my decision in CA-00003647-001 and as a result, no redress is awarded in the within complaint.

CA-00003647-001

The respondent herein discriminated against the complainant on the disability ground in terms of section 6(2)(g) and contrary to section 8 of the Act. I determine that the appropriate redress is an award of compensation and that the respondent shall pay €3,500 to the complainant in compensation for the effects of discrimination. The entire 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).

Dated:   9^th May 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Employment Equality Act

Disability ground

Reasonable accommodation

Section 16, Employment Equality Act

Humphreys v. Westwood Fitness Club [2004] E.L.R. 296