ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00001650

Parties: 30.06.16

Parties: 03.11.16

Parties: 23.01.17

The complaint under the Employment Equality Act addresses all matters that arose in the employment up to the date of lodgement of the complaint on the 8^th.May 2015.

Employment Equality Act 1998 2015 ref et-156094-ee-15

Location of Hearing: WRC Hearing Room Sligo

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or The Employment Equality Acts,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).

Summary of Claimant’s Position

The claimant was employed as an administrative assistant with the respondent from the 24^th.April 2002 to the 25^th.Jan.2016.In her complaint to the Equality Tribunal the claimant submitted as follows:

“I was diagnosed with Crohn’s Disease in July 2014 and since then my condition has gradually worsened.I approached my employer in January 2015 to inform him of my illness and the impact certain duties were having on my health .I requested an alteration of my role to a back room role which would enable me to access toilet facilities throughout the day when necessary.I also provided my employer with a letter from my GP supporting this adjustment to my duties.My role within the company is mainly office based but I do provide cover on the cash desk for tea breaks, lunch breaks and bank lodgements daily.I also cover the cash desk 3 times a week between the hours of 5pm and 6pm.It is this cover at the cash desk which is causing me difficulty.From January 2015 until present, I have had several meetings with my employer and exchanged correspondence in an effort to be reasonably accommodated by my employer having regard to my illness and my entitlement to dignity at work but there has been no progress.I feel mediation would be beneficial”.

The symptoms of Crohn’s disease was set out and it was advanced that the nature of the condition was such that the claimant needed to be able to access a toilet quickly as she suffered from embarrassing symptoms associated with her condition.

The claimant’s GP corresponded with her employer in January 2015 and recommended that her role be confined to the office.He also requested that she be exempt from carrying heavy weights .When working in the office the claimant had ready access to wc facilities as and when required .However, while serving customers on the shop floor , she worked alone at the cash desk and asserted that she was under continuous stress , wondering if she was going to be able to access a toilet in time but also worried about drawing the attention of colleagues and customers to her illness.

When the claimant presented the letter from the GP to her employer Mr.K on the 8^th.Jan. 2015 , it was submitted that he responded by asking her “ to consider if you want to proceed with this letter as it would be part of your permanent employee record”.It was suggested that she take a few days to consider this and let him know if she still wished to proceed.The claimant confirmed she wished to proceed as her condition was going to be ongoing.The claimant’s representative submitted that the claimant’s difficulty was sourced in the requirement to provide cover at the cash desk – an assignment that constituted 13 hours of her 39 hour week.The respondent replied to the GP’s letter by inviting the GP to visit the workplace and undertake an assessment of the claimant’s duties.It was suggested that once the employer was in receipt of a workplace assessment and an assessment by her consultant , the company would be in a better position to consider reasonable accommodation.The letter was submitted one month after the claimant had given her GP report to the respondent – leading the claimant to question the employer’s appreciation of the urgency of her situation.On the 23rd.Feb. 2015 , the Crohn’s consultancy team provided a letter stating that the claimant needed to have access to toilet facilities at all times due to the unpredictable nature of her illness.It was submitted that the letter was dismissed by Mr.K as it was signed by a nurse rather than the consultant.A chronology of the ensuing exchanges between the parties in documentary form and at meetings was set out and it was submitted that no progess was made on the claimant’s request for reasonable accommodation.It was contended that the claimant was denied an opportunity to be represented at the meetings as her representative was not a staff member – the claimant did not want a co worker to accompany her as she wanted to keep her condition confidential.When the claimant sought copies of the company’s procedures she was informed by Mr.K in front of other staff that the company did not have any procedures other than an antibullying and harassment policy.She was provided with a copy of the LRC Grievance and Disciplinary procedures in May 2015.

On the 20^th.March 2015 , the claimant was assigned to cover the cash desk on a full time basis for 2 weeks ; when the claimant complained she was told that if she needed to use the wc urgently she could call on specified staff members to cover the desk.This was perceived as blatant disregard for confidentiality with respect to the claimant’s illness.On one occasion when there was no cover available for the claimant , she was compelled to lock her till in order to use the toilet and was met by a queue of irate customers on returning to the till.When the claimant was asked to move her desk in March 2015, she believed that this was an attempt to humiliate and intimidate her.She asserted that Mr.K frequently mentioned that no employee had ever succeeded in winning a case for unfair dismissal against the company.It was submitted that the claimant made several requests for a company doctor/and/or occupational health specialist to assess her work situation - to no avail.It was submitted that the respondent had sought to undermine the claimant’s request for reasonable accommodation by persistently and unfairly referring to problems with the claimants working relationship with her colleagues.

A time table of the claimant’s sick leave record was presented – the claimant had been unfit for work since July 2015 – she asserted that the stress of her working conditions along with the absence of progress on reasonable accommodation exacerbated her illness.

It was submitted that the respondent failed to meet their obligations under the Act by providing the claimant with reasonable accommodation – whereby she would have ready access to toilet facilities at all times.

It was submitted that throughout the period Jan-April 2015 , the claimant had hoped that the continuous communication with the respondent would elicit a suitable accommodation of her needs in the workplace .When it appeared to her that the engagement process had effectively reached an impasse , she indicated her intention to refer the matter to the Equality Tribunal and had expressly sought mediation on the dispute.Once the matter was referred , there was no further communication between the claimant and her employer regarding her request for reasonable accommodation.The respondent had challenged the GP’s letter while ignoring the substantive matter that her work be confined to the office.The claimant had sought written specific details of the measures the company were putting in place to accommodate her illness but was never furnished with same.It was submitted that the chronology of correspondence demonstrated that Mr.K was argumentative and resistant to accommodating the claimant’s needs – the procedure that was put in place was indiscreet and focused attention on the claimant.

It was submitted that the claimant had met the tests set out by the Labour Court with respect to establishing a prima facie case - medical evidence of her disability had been provided ; her direct evidence and the voluminous correspondence had demonstrated that the specific treatment alleged had occurred and the treatment was less favourable that the treatment which would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground – it was submitted that the accommodation which provided for the claimant calling on other employees to cover for her when she needed to access the toilet was also available to her comparator and indeed to any other employee needing to use the WC.The provisions of EE/2010/441 were invoked in support of the assertion that by offering the claimant the same facilities as her colleagues in circumstances where she does not have the same control over her bodily functions , amounted to less favourable treatment than the treatment afforded to other employees in similar circumstances not covered by the disability ground.It was submitted that Mr.K’s response to the claimant’s complaint and her Data access request was characterised by delays.

It was submitted that the respondent had failed to meet the obligations required under the Act and set out in Determination 7/03 with respect to carrying out a 2 stage enquiry into the disability , the special treatment by which the employee can become fully capable and engaging with the employee on the inquiry process.The respondent had repeatedly ignored requests for an assessment by a company doctor or independent occupational specialist.The provisions of 2015 IEHC 785 were also invoked in support of the claimant’s contention that the respondent failed to conduct a meaningful assessment of the measures required to accommodate an employee suffering from a disability.It was submitted that the respondent had failed to present any evidence of a disproportionate burden in accommodating the claimant and had made no efforts to explore the possibility of obtaining public funding or other assistance.In this regard , the provisions of the Employee Retention Grant Scheme (ERGS) General Conditions were submitted into evidence.

Summary of Respondent’s Position

The respondent denied the claim of discriminatory treatment on the grounds of disability .In the respondent’s initial response , it was submitted that the claimant’s outline of her circumstances was generalised in nature and gave little factual detail.It was submitted that the claimant had neglected to refer to the reasonable accommodation measures offered by the respondent.It was asserted that the respondent was unaware of the affect of the claimant’s illness on her duties until they received the report from her doctor on the 8^th.Jan.2015.It was submitted that the claimant’s request for partial redeployment was first made verbally on the 10^th.Feb. 2015 and in writing on the 12^th.of that month.The company wrote to the claimant’s doctor on the 12^th.Feb. 2015 inviting him to attend the workplace to set out any additional measures of reasonable accommodation other than those in place.The company had implemented reasonable accommodation measures on a trial basis since January 2015 – staff would cover for the claimant when she needed an adhoc comfort break and if cover was not available she could stop work, lock the till and take her break.She was not called upon to do lifting.The claimant’s request to have all of her downstairs admin duties transferred to another staff member had led to the impasse.The company had examined how the claimant’s skills and experience might be otherwise deployed in a different job but concluded that such a fundamental change to her job- approx. 50% of her duties- was not a viable option until the company’s financial situation was stabilised.

It was submitted that the claimant was one of 3 representatives appointed as part of the staff consultation process that led to a significant level of redundancies in the first half of 2012.It was suggested that given her position the claimant was well aware of the company’s financial circumstances and their inability to appoint additional staff.It was contended that the claimant had prior difficulties with her downstairs duties and had significant disagreement with her colleagues and supervisor – to whom she had made it clear that she wanted to change her job to do a different as yet undefined job.

It was submitted that the claimant had used her submission of the 3^rd.Nov.2016 to raise fresh grievances and to cast her employer n a poor light.It was advanced that the aim of bringing up these matters was to support an argument of victimisation which “ is misplaced at best and vexatious at worst”.It was submitted that as the claimant’s complaint was received on the 8^th.May 2016 , the focus of the investigation would be events preceding the receipt of the complaint form for a period of 6 months – i.e. 7^thDec 2015 – 6^th.May 2015.A number of authorities were invoked to support the respondent’s contention that acts occurring after the complaint has been submitted cannot be comprehended by the claim and cannot be relied upon for the purposes of seeking redress.

It was submitted that this case was distinguishable from Nano Nagle School –v- Marie Daly (2015IEHC785) as the claimant had been dismissed from her employment whereas in the instant case the claimant voluntarily chose to leave her employment and thereafter claim constructive dismissal.The respondent had engaged extensively with the claimant on parameters to be considered in terms of reasonable accommodation , inviting the claimant’s GP to visit the workplace unlike the foregoing case where the claimant had not been invited to make any submissions.There were 26 other employees in the Nano Nagle case while the respondent was severely restricted by a much reduced workforce owing to the recession and financial restrictions.The respondent had indicated a willingnesss to participate in mediation , unlike the Nano Nagle case. It was also contended that Justice Noonan had found in the Nagle case that what was at issue was the failure on the respondent’s part to even consider a redistribution of the tasks of the SNA.

With respect to Alan Gallagher v McCosker & Sons Ltd. EE/2010/441, the respondent asserted that the Tribunal had found that “ offering the complainant , who is profoundly deaf , the same facilities as offered to other participants , who did not have a disability constitutes discriminatory treatment in relation to his participation on the course while in the instant case the “Respondent did not merely offer the same facilities as that offered to other employees to the claimant”.

It was contended that the claimant had asserted that her demand for partial redeployment was a zero cost solution.It was submitted that this was inaccurate as the “Respondent would have had to pay another member of staff or more probably recruit a new part –time employee to take over the 50% of the claimant’s role which was conducted at the sales desk.”It was submitted that the respondent put forward several options to the claimant and had made a meaningful assessment of reasonable measures that they could take in light of the medical reports furnished to them.It was submitted that none of the options were considered by the claimant who approached the issue from a fixed position that “partial redeployment” was the only acceptable form of reasonable accommodation”.It was submitted that Dr.Steele’s Feb. 2015 report made no direction or suggestion in terms of ‘partial redeployment”.

It was argued that the claimant was uniquely offered a number of alternative work arrangements that were not offered to the claimant’s comparator Ms.AT – these had all been rejected by the claimant.

The company’s precarious financial situation was highlighted and it was submitted that if an employer finds that one particular reasonable accommodation amounts to a disproportionate burden , an alternative which incurs fewer costs may be adopted as long as it is effective.

It was submitted that the claimant had an imperfect understanding of what reasonable accommodation was and the inherent obligations of the respondent under the Act.

It was submitted that the letter from the claimant’s consultant (27^th.June 2016) with an attachment “Chrohn’s and Colitis UK” were never seen by the respondent - it was noted that the consultant stated in his letter of the 27^th.June 2016 “The claimant’s treatment regime took effect and her condition/symptoms ‘settled’ in the last 6 months just before the claimant took up her new job in the public sector on the 1^st.Feb. 2016”.

It was submitted that the attendance by the claimant at an appointment with an occupational health specialist was regularly considered –“the Respondent concluded they would just have to wait for her new consultant to complete his assessment and tests , to complete his assessment and tests , to start the new treatment plan and then to report back to her GP”.The respondent might then have heard from the claimant or her GP what her prognosis was.In addition to this the Respondent had asked Dr.K to clarify his report of January 2015 and was acting in compliance with Dr.S’s recommendations in his medical report of Feb. 2015.If any further information or reports were submitted from Dr.K or Dr.S the respondent would have taken these into consideration in their deliberations.

The respondent denied the statements by the claimant’s representative that he had ignored requests by the clamant and her GP to refer her to the Company Doctor and/or Occupational Health Specialist.

The claimant’s assertions of intimidation and veiled threats were vehemently denied by the respondent.

DECISION

I have reviewed the evidence presented at the hearings and taken account of the direct evidence and submissions of the parties.The claimant submitted that the respondent failed to provide her with reasonable accommodation in accordance with Section 16.The respondent did not dispute that the claimant’s illness – Crohns Disease – constituted a disability within the meaning of the Acts. Essentially the claimant was seeking to be located at a workspace that was in close proximity to toilet facilities and to cease face to face engagement with customers in light of her requirement to avail of wc facilities as a matter of extreme urgency.The claimant disputed the respondent’s assertion that 50% of her work time involved face to face engagement with customers – it was submitted that at most such duties amounted to a third of her work time.

I have taken account of the correspondence between the parties from January – early May with respect to the matter of reasonable accommodation and of the disputed records of the minutes of meetings that were furnished to the commission.I have concluded that no proper investigation was undertaken to ascertain what arrangements could be put in place to accommodate the claimant.I do not accept that the respondent’s invitation to the claimant’s GP to inspect the work place was appropriate or reasonable and have noted the claimant’s willingness to facilitate engagement with an occupational health specialist and which was not acted upon by the respondent.I find that the documentary evidence submitted by the respondent supports the claimant’s contention that the respondent failed to proactively examine what measures were required to accommodate the claimant and that no meaningful examination was undertaken by the respondent with respect to the objections raised by the claimant to ongoing interaction with customers.I am of the view that the respondent’s responses as set out in their own records of the meetings that took place were characterised by prevarication , a lack of urgency and an unwillingness to take account of the practical challenges for the claimant in continuing to have face to face interaction with csutomers.

I am satisfied that the respondent failed to meet the test for reasonable accommodation as set out by the Labour Court in Humphrey’s v Westwood Fitness Club Det.No.EED037 and upheld by the Circuit Court and in Nano Nagle School v Marie Daly 92015 IEHC 785) where the High Court affirmed the decision of the Labour Court.I am satisfied that the claimant has established that she was treated less favourably to her colleagues who did not have a disability .I find consequently that the claimant has established a prima facie case of discriminatory treatment on the grounds of disability.

I find that the respondent did discriminate against the claimant on disability grounds – taken into account all of the circumstances I consider an award of €25,000 compensation to be appropriate .

Complaint(s):

Date of Adjudication Hearing: 23/01/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or The Unfair Dismissals Acts, 1977 - 2015following 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).

This investigation deals with the events and exchanges between the parties following the submission of the complaint to the Equality Tribunal(May 2016) and the claimant’s decision to take unpaid extended sick leave ultimately culminating in her decision to leave the employment.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

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 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have reviewed the evidence presented at the hearings and noted the voluminous submissions made by the parties. I have examined both the contract and reasonableness tests that may be invoked in the context of constructive dismissal .I have concluded on the basis of the chronology of events post submission of the complaint to the then Equality Tribunal on the 8^th.May 2015 - the absence of an established grievance procedure , the request to the claimant to set out her duties , the paucity of contact with the claimant from the submission of her certificate on the 31^st.July 2015 to the 9^th.November 2015 in circumstances where she was certified for workplace stress , the absence of any proposal or progress on measures to reduce workplace stress and accommodate the claimant’s disability and the tone of the correspondence from the respondent to the claimant in letters dated the 9^th.Nov.2015 and the 12^th.Jan. 2016 which I consider to have been devoid of empathy and/or acknowledgement of the imperative for the claimant to avoid stressful situations- that the behaviour of the respondent was so unreasonable that the claimant was justified in resigning.

I note that the claimant was not available for work from July-December 2015 and in light of the fact that the claimant took up duty in the public service shorty thereafter I am limited in   awarding 4 weeks pay to compensate for her unfair dismissal .Payment should be made to the claimant within 42days of the date of this decision.

Dated:  11th September 2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea