ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006364
Complaint(s):
|
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-00008311-001 | 22/11/2016 |
Date of Adjudication Hearing: 27/06/2017
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 79 of the Employment Equality Acts, 1998 - 2015] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Claimant is claiming discrimination against the Respondent when offered a job but lost it after they refused to consider a reasonable accommodation tom his disability. |
Summary of Complainant’s Case:
The Claimant applied for a job with the Respondent as a Support Worker in the Louth area and was interviewed on 13 May 2016. He received a conditional offer letter on 7 June 2016. Following a medical report which identified the Claimants disability the job offer was withdrawn on 26 October 2016 after a meeting between the parties on 24 August 2016. The Claimant has a history of epilepsy which he controls by medication. He has not attended any doctors in this connection and has not had any seizures for over 20 years. He is claiming discrimination by the Respondent on the grounds that they will not provide reasonable accommodation for him. |
Summary of Respondent’s Case:
The offer of employment was for the position of a Support Worker. The offer was conditional on a number of matters being satisfactory including an occupational health report (OH). When the Claimant completed his medical questionnaire it was clear that there were a number of health issues that required medical investigation to ascertain if he was fit to carry out the support worker role. An appointment was made for him to attend with an Occupational Health Consultant on 28 July 2016. A copy of their report was submitted to the Hearing .The OH report observed that he had three chronic health conditions. The following adjustment were recommended by the report Not carrying out lone working activities Access to a computer or other device for note taking and writing reports With regard to verbal; communication, extra time for him to be understood by colleagues and services users. It became clear that the Respondent was able to fulfil the second and third OH recommendations but was unable to comply with the requirement to avoid lone working given the nature of a support worker role. All of the Respondent’s services require support workers to be able to lone work. These services are designed to respond to individual service user’s needs. This will require staff working on their own with individual service users and small groups of service users. The Respondent was able to make reasonable accommodation on all the other recommendations on the OH report. At a result of this a meeting was arranged to discuss the OH Report with him on 24 August. As a result he was advised that given that he disagreed with the OH consultant’s report, the Respondent would consider any additional medical evidence that he was able to provide to support his contention that he was able to work alone. Unfortunately, he was not able to provide such medical evidence and the Respondent did not hear from him again under a complaint was made to the WRC. The only possible solution to avoid the Claimant from lone working was to employ another individual to assist him in carrying out his duties but that was financially and economically impossible as no such funding to create a role if this nature exists. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have considered the submissions of both parties. At the meeting between the parties to discuss the OH report on 24 August the Claimant, who disagreed with it, was advised that the Respondent would consider any additional medical evidence that he could provide to support his contention that he was able to lone work. He did produce a letter dated 1 September, from an independent OH body but this did not support the Claimant’s contention in regard to lone work. They did consider it a risk albeit a low one at over 2%. This still left the Respondent liable for the Claimant’s health and safety and the consequences therein. The Respondent was quite prepared to provide reasonable accommodation for all other requirement of the OH report except the lone work aspect. Given the nature and structure of the Respondent’s organisation, it is economically impossible for them to employ a person to support the Claimant to do lone work. I therefore do not find the claim of discrimination well founded and it fails. |
Dated: 28th September 2017
Workplace Relations Commission Adjudication Officer: John Tierney
Key Words:
Reasonable accommodation / disability |