Complainant

Respondent

Anonymised Parties

An Employer

Representatives

Eoin O’Connor BL instructed by

Evans Little O'Reilly Solicitors

Claire Bruton BL instructed by McCann Fitzgerald Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00008967-001

30/12/2016

The complainant alleges he was discriminated against on the grounds of disability in relation to his conditions of employment as a result of the respondent’s failure to reasonably accommodate his disability. This is denied by the respondent.

The complainant’s position is that he was discriminated against on the grounds of his disability and that the respondent, his employer, has failed on numerous occasions to put in place reasonable measures to accommodate his disability. It is claimed that such discrimination has been continuous and ongoing, with the result that the complainant has been excluded from taking full part in his role with the respondent.

There were differing opinions about anonymising the parties in the version of the decision to be uploaded to the website. I offered the parties the opportunity to make submissions post-hearing on this matter. I will comment on this further in the decision.

I am of the opinion that it is not in either party’s interest that they be named in the uploaded version of the decision, they will be anonymised.

In October 2014, the complainant attended an external meeting at which representatives of a third party company were present, the meeting included a presentation and slide show. At this meeting it is alleged that the complainant was unable to fully participate in the meeting due to his hearing difficulties. No accommodation was provided to the complainant in the form of increased audio and /or an audio induction loop.

In February 2015, the complainant was invited to attend a meeting in Dun Sceine. The complainant outlined the difficulties he had experienced at the October 2014 meeting and his apprehension that the same would occur at the meeting on 11^th February at which a third-party service provider would be in attendance.

After a series of emails were exchanged between the complainant and management on the issues raised by the complainant he alleges he was threatened by email dated 10^th February 2015 that if he did not attend the meeting on 11^th February he would be subjected to disciplinary action. The complainant then went absent from work from 11^th February until 25^th February 2015, this absence from work was covered by medical certification.

On his return to work the complainant attended a meeting with the Human Resources Manager. On foot of this meeting he was requested to attend an Occupational Health specialist on 5^th March 2015. It is also alleged by the complainant that he was promised that the Human Resources Manager would investigate the issues raised and report back to the complainant. The complainant has never received any such report.

The next issue raised by the complainant relates to a workplace safety audit conducted by a third-party service provider and organised by the respondent. A number of questions were put to the complainant. The complainant acknowledges that all answers were completed correctly with one exception – “Are you able to conduct normal conversation in the office”. The auditor had ticked “Yes” without having put this question to the complainant at all. The complainant was forced to confront the auditor and explain the error. This had the effect of causing the complainant considerable stress and embarrassment and was caused by the failure of the respondent to have in place any formal mechanism or protocol in place to deal with such incidents.

In July 2016, the complainant attended a workshop on the topic of dignity in the workplace. The complainant was unable to hear the content of this presentation. The respondent was aware at the time of the presentation that the complainant suffered from hearing difficulties and no accommodation was provided so that the complainant could at least hear what was being said.

Again, in July 2016 the complainant is absent from work for two weeks and his medical certificates state that he was suffering from work stress.

On 25^th August 2016, the complainant once again attended the Occupational Health provider where he was requested to remove his hearing aids and placed in a sound proof booth. The complainant was then left alone in the booth which, it is alleged, exposed him to an undue risk of harm.

The complainant’s submission then goes into the law on discrimination and disability and outlines the definition of disability within the Acts.

The respondent is aware of the complainant’s disability and has referred him to their own occupational health specialist on two separate occasions.

The Labour Court has recognised hearing loss as a disability within the meaning of the Acts (ref: Bus Eireann v Mr C EDA0811).

The scope of protection against discrimination is delineated in s.8 of the Acts. Section 8(1) of the Act prohibits in relation to:

(a)    Access to employment

(b)    Conditions of employment

(c)     Training or experience for or in relation to employment

(d)    Promotion or re-grading

(e)    Classification of posts

The complainant relies on paragraphs (b) and (c) of the prohibited areas in the statutory definition. The particulars of such discrimination are elaborated at s.8(6) of the Acts, where it states that an employer shall be taken to have discriminated an employee if, on any of the nine grounds, the employer does not offer or afford the employee:

(a)    The same terms of employment (other than remuneration and pension rights)

(b)    The same working conditions

(c)     The same treatment in relation to overtime, shift work, short time transfers, lay-offs, redundancies and disciplinary measures

As the employer offers or affords to another person or class of persons, where the circumstances in which both such persons and classes are or would be employed are not materially different.

Section 47(1) of the Disability Act 2005 applies to public bodies – A public body shall, in so far as practicable, take all reasonable measures to promote and support the employment by it of persons with disabilities.

In this instance it has been submitted that the complainant has been subjected to discrimination by virtue of persistent ignoration of the complainant’s disability at the hands of the respondent’s servants or agents which has resulted in the complainant being unable to participate fully in the workplace, to hear and understand presentations and has caused him serious work related stress. In addition, the respondent is in breach of its duty pursuant to s.47 (1) of the Disability Act 2005.

Burden of Proof.

The onus begins with the complainant who must establish a prima facie case of discrimination, if this is done the burden shifts to the respondent who must then seek with evidence to rebut the existing presumption of discrimination.

It was submitted that the comparator against which the complainant should be analysed is another employee doing the same job and has normal hearing. On this basis, it is contended that such an employee with normal hearing would not have suffered the same issues as the complainant did.

Further or in the alternative, if the comparative is not deemed to be another employee with normal hearing it was submitted that there is another employee doing the same job who suffers from a disability with regard to his eyesight and who has been afforded reasonable accommodation not offered to the complainant.

Defences to discrimination on the grounds of disability.

The duty to provide special treatment or facilities for those with disabilities is derived from section 16 of the Acts. Section 16(3) provides that an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities.

The effect of s.16 is that a person with a disability is to be presumed to be fully capable of discharging their duties, if by the employer making some reasonable accommodation, they can continue in their employment. However, as the Labour Court has noted – ref (British Gas Services v McCaul [2001] IRLR 60:

“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with the disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment that would be accorded to an employee without a disability, Thus it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”.

It was submitted by the complainant’s representative that that the duty to consider and provide measures in order to allow the complainant to be capable of performing and/or taking part in the duties of his employment are proactive and not passive.

It was further submitted that the respondent failed to provide reasonable accommodation to the complainant within the meaning of the Acts and also failed to take account of the medical evidence which detailed the complainant’s disability and the recommendations contained therein.

2. The acts of discrimination were foreseeable
3. The respondent failed to take any reasonable steps to accommodate the complainant.
4. The complainant was subjected to less favourable treatment in relation to his conditions of employment and his access to training.
5. The complainant has suffered distress and humiliation.

The complainant is seeking appropriate remedies for the discriminatory treatment in accordance with the Acts.

The complainant commenced employment with the respondent on 26^th February 2007 on secondment from a government department as an Enforcement Officer. He transferred as a direct employee on 10^th March 2008. The function and its staff subsequently transferred to his current employer with effect from 1^st January 2011. At the point when the complainant was due to relocate to a new location he raised a concern with the Human Resources section in relation to his hearing difficulty and the proposed move to the new location. In February 2012, prior to his relocation the complainant was assured that his workstation would be adapted to his specific needs, the complainant was further facilitated with a walk through of the new location in January 2013.

In order to assess the impact of his condition and any reasonable accommodation required for the performance of his role in the new location the complainant attended the respondent’s company doctor in June 2013. A medical report dated 27^th June 2013 contained a suggestion to redesign the complainant’s workspace by heightening the panelling around the workspace. These recommendations were implemented.

On 22^nd October 2014 the complainant attended a meeting in the premises of an outsourced service provider. The main speaker at this meeting asked could she be heard – no concerns were raised by anyone at the meeting. Prior to this meeting the complainant had not raised any issue with his ability to hear at any meeting either internal or external. The first time any issue was raised by the complainant was in February 2015 and any alleged inability to hear on his part at this meeting was not raised at all.

On 9^th and 10^th February 2015 the complainant discussed the meeting of 22^nd October with a member of management. However he did not refer to or allude to his hearing difficulties or any issues with the meeting being caused by his disability. His concerns related to attending joint meetings with a contracted service provider as a non-public sector entity. The complainant noted that he felt unsafe at combined meetings as he was unable to freely express his views by reason of the inclusion of third parties/commercial companies being present at this meeting. This was not connected to his hearing impairment. A similar meeting was scheduled for 11^th February 2015 and the complainant did not wish to attend.

Following the complainant’s meeting with a member of management the respondent company’s management assessed and discussed the issues and found that the complainant’s concerns regarding safety were unfounded. The complainant was informed that his attendance at the meeting on 11^th February would be expected. The respondent refutes the complainant’s submission that this amounted to the complainant being threatened by email.

On 11^th February the complainant went on two weeks’ sick leave, his medical certificates stated that he was suffering from work stress. On his return to work the complainant met with the respondent company HR Manager. During this meeting the complainant explained that he was worried about a threat to his job security and that he felt he was being evaluated and monitored by the contractor’s staff. He also claimed that he felt unable to contribute to the meeting on 22^nd October 2014 as he felt unsafe and he mentioned feeling a sense of menace in the room. Again there was no reference to any issues being experienced by the complainant due to his hearing impairment. He was assured by the HR Manager that he was not being evaluated or monitored by anyone other than his own managers in the respondent company.   An appointment with the Respondent’s Occupational Health Advisor was discussed and this was unrelated to the Complainant’s hearing difficulty, and there was no suggestion from the Complainant that he experienced difficulties with hearing at any of the meetings attended by third parties. Therefore, any issues he had with meetings were unconnected to his hearing difficulties and therefore are matters which are irrelevant to a claim of discrimination on grounds of disability before the Workplace Relations Commission.   The complainant requested that he not carry out full duties and remain office based until the medical appointment.   The respondent acceded to this request. The HR Manager subsequently discussed the complainant’s concerns with his Manager and was assured that there was no threatening environment at the meeting to which he referred.

The complainant attended the Occupational Health assessment on 5^th March 2015.   According to the post assessment report, the complainant advised the Occupational Health Advisor that he had been experiencing decreased levels of wellbeing following changes in work, due to a service level agreement between the respondent and a private company.   He expressed specific concerns in relation to two staff meetings. The first being the October meeting and the second compliance meeting which was due to take place on 11^th February 2015, but the complainant informed the Occupational Health Advisor that he felt unable to attend the February meeting. The Occupational Health Advisor found no underlying medical condition and concluded the complainant was fit to work and carry out his normal duties.

The respondent agrees with the complainant’s submission in relation to the assessment of the complainant’s workstation and would add that this was a genuine mistake totally without malice. The contractor in question was profoundly apologetic, admitted it was an error of judgement for which he was extremely sorry. To ensure that there is no chance of a similar situation occurring in the future the respondent has now engaged a different training provider for its Health and Safety requirements.

In relation to the complainant’s submission on Dignity and Respect at Work the respondent engaged a reputable organisation that delivers training programmes to the public sector. According to the trainer, prior to playing an audio clip during the course of the workshop, she asked the group to inform her if anyone had difficulty hearing the clip as she had forgotten her speakers. After the training had completed, the complainant raised an issue with the trainer as he had been unable to hear the clip. The trainer was concerned that she had inadvertently caused upset and distress to the complainant and telephoned the respondent’s HR Manager to inform her of the issue on the night of 6^th July. She informed the HR Manager that the complainant had approached her at the end of the workshop to let her know that she had caused him distress when playing the clip. He told her that he had been left embarrassed as he had been unable to follow the audio clip content fully due to his disability. She took his complaint very seriously and was keen to give an explanation. She apologised a number of times for causing any distress to the complainant and pointed out that she would not make such an error again, that going forward she would be more aware of such issues when conducting training and that this was a lesson to her to be more mindful.

The complainant attended another medical assessment on 25^th August 2016 for audiometric testing. On 5^th October 2016, the complainant once again attended the occupational health specialist in order to review his audiometric test. The complainant was deemed fit to continue in his role. The occupational health specialist that the respondent company engage with the complainant to explore the possibility of moving to an office that he identified as suiting his needs better. The occupational health specialist noted that she had advised the complainant that this could increase his sense of isolation.

Following the audiometric test of 25^th August, the complainant emailed the respondent’s HR Manager and expressed concern that during the test he had been left by the attendant in the sound proof booth when she left to go outside and he had concerns for his safety. This was investigated by the HR Manager who informed the complainant that she was satisfied that the complainant had not been put at risk.

A meeting was arranged for the 14th November 2016 to discuss the medical report and next steps including a work station assessment. The HR manager felt good progress was made at this meeting and remarked in her note of this meeting that it had ended positively. The only outstanding issue from this meeting was the issue of the complainant having his own office. A summary of this meeting was sent by email to the complainant who responded the same day raising no issues with the content of the email. The consultation process with the complainant regarding his own office is still ongoing.

Legal Submissions.

It is accepted that the complainant’s hearing loss is a disability within the meaning of section 2 of the Employment Equality Acts.

Both the incidents of October 2014 and February 2015 do not fall under the Employment Equality Acts.

The respondent has complied with its obligations pursuant to s.16 of the Employment Equality Acts. It has obtained medical opinion on the complainant’s disability and the effects this could have in the workplace. Following consultation and discussions with the complainant, the accommodation recommended by the occupational doctor relating to the hearing impairment of the complainant were put in place by the respondent. Reasonable accommodation has been provided to the complainant to assist him in the workplace. The respondent has been proactive in obtaining medical opinion on any reasonable accommodations required to assist the complainant and in putting in place the accommodation recommended on the basis of that advice, The complainant was consulted in 2013 and 2016 regarding the reasonable accommodation recommended by the occupational medical adviser and the respondent implemented this advice. The complainant made no reference to having difficulties at meetings or at presentations until July 2016 such that the respondent cannot be expected to have provided any reasonable accommodation to deal with this eventuality when it was not on notice of this being an issue for the complainant. When the complainant raised an issue with a workspace assessment, the respondent investigated it and sought to put in place an alternative workspace assessment as was the desired outcome of the complainant. This did not prove possible. The respondent cannot be held liable under the Employment Equality Acts for accommodations the complainant asserted arose under s.16 in circumstances where it nor its medical advisers were not aware of any potential requirement for this in the workplace. The respondent has conducted an honest assessment of the needs of the complainant having regard to his hearing impairment and involved the complainant in all stages prior to putting any accommodations in place. In this regard reliance is placed on the decision of the Labour Court in A Dublin Transport Company v A Worker (EDA 171) where the Labour Court set out the procedure required of an employer in its obligations pursuant to s16 (3) of the Employment Equality Acts.

In the more recent Labour Court decision of Dunnes Stores v Mulholland (EDA 179) found that no breach of the Employment Equality Acts occurred where the employer sought medical advice and responded to medical advice received regarding accommodations to be put in place. This dicta equally applies to the respondent regarding his treatment of the complainant.

It was respectfully submitted, therefore, that the within claim must fail.

The representatives of both the complainant and respondent made lengthy submissions at the Adjudication hearing.

In making an attempt to comprehend what has actually taken place I have looked at a timeline starting in 2013 and ending in 2016.

The complainant was due to move to a new building with his team in the summer of 2013. He raised the issue of his hearing impairment with the respondents HR Manager. He was assured as far back as February 2012 that his workstation would be adapted to his specific needs if required. In June 2013, the complainant was invited to attend the respondent’s occupational health adviser to ensure his specific requirements were met and to ascertain if any changes were required to his new work station. The agreed changes were made to his workstation.

The complainant attended an external meeting in October 2014. When a second external meeting was being planned for February 2015 he raised the issue of some concerns he had in relation to attending meetings with external contracted service providers, he did not refer to or allude to his hearing disability. Following an absence from work in February 2015 the complainant attended the respondent’s occupational health adviser on 5^th March 2015, the complainant advised the occupational health adviser that he had been experiencing decreased levels of well-being following changes in work due to an SLA between the respondent and a private company – there was no mention of his hearing impairment either from the complainant or in report from the occupational health adviser.

Two other events are addressed in submissions:

In relation to the complainant’s submission on Dignity and Respect at Work the respondent engaged a reputable organisation that delivers training programmes to the public sector. According to the trainer, prior to playing an audio clip during the course of the workshop, she asked the group to inform her if anyone had difficulty hearing the clip as she had forgotten her speakers. After the training, had completed, the complainant raised an issue with the trainer as he had been unable to hear the clip. The trainer was concerned that she had inadvertently caused upset and distress to the complainant and telephoned the respondent’s HR Manager to inform her of the issue on the night of 6^th July. She informed the HR Manager that the complainant had approached her at the end of the workshop to let her know that she had caused him distress when playing the clip. He told her that he had been left embarrassed as he had been unable to follow the audio clip content fully due to his disability. She took his complaint very seriously and was keen to give an explanation. She apologised a number of times for causing any distress to the complainant and pointed out that she would not make such an error again, that going forward she would be more aware of such issues when conducting training and that this was a lesson to her to be more mindful.

I accept this was a genuine mistake on the part of the trainer and cannot attach any blame to the respondent in relation to this incident.

The second incident relates to the workspace assessment. The respondent agrees with the complainant’s submission in relation to the assessment of the complainant’s workstation and would add that this was a genuine mistake totally without malice. The contractor in question was profoundly apologetic, admitted it was an error of judgement for which he was extremely sorry. To ensure that there is no chance of a similar situation occurring in the future the respondent has now engaged a different training provider for its Health and Safety requirements.

I accept this should not have happened and is indeed an error of judgement on the part of the consultant contractor. I fail to see how the respondent can be accused of failing to provide reasonable accommodation in this instance.

In A Dublin Transport Company v A Worker (EDA 171) the Labour Court sets out the procedure required of an employer in its obligations pursuant to section 16 (3) of the Employment Equality Acts:

The purpose of that procedure is to ensure that reasonable consideration has been given to an employee’s disability so as to ensure that an honest determination has been made as to whether aspects of the job can, without excessive cost, be revised or restructured to accommodate the disability and allow the person remain in the workforce. Where such an exercise has not been carried out there is a heavy burden on the employer to adduce evidence to show that an honest assessment has been arrived at in that case.

There is no doubt in my mind that should we apply that procedure to the case before us we would all accept that reasonable consideration was given and is still being given and that an honest determination has been made and also that the complainant has been the recipient of reasonable accommodation.

As stated by Complainant.

On the question of anonymising the parties I do accept that the Employment Equality Act is not included in the categories of proceedings set out in Schedule 5 to the Workplace Relations Act 2015, the requirement of anonymity as provided for under Section 41 (14) Workplace Relations Act 2015 does not apply to the within dispute.

As stated by Respondent.

We confirm that having regard to the nature of the submissions made by the Complainant and in order to protect his privacy, and having regard to the Workplace Relations Commission current practice of anonymising the parties to Adjudication Officer decisions, subject to the views of the Complainant, our client’s view is that the decision should be anonymised.

I do not believe that it is in either party’s best interest to name the parties.

For the reasons outlined above I decide that the complaint is not well found.

Reasonable accommodation