EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2017- 065
PARTIES
An Employee
(Represented by Murphy’s Solicitors )
Vs
A Cleaning Company
(Represented by Management Support Services Limited)
FILE NO: Et-157922-ee-15
Date of issue: 4th of September 2017
1. Dispute
1.1 This dispute involves a claim by the complainant that she was discriminated against by the respondent on grounds of disability in terms of section 6 of the Employment Equality Acts, 1998 to 2015 and contrary to section 8 of those Acts, in relation to her conditions of employment and other and in relation to the respondent’s failure to provide her with reasonable accommodation.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015 to the Equality Tribunal on the 8th of July, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 9th of February, 2017, 2015 to me, Orla Jones Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 21st of April, 2017.
2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
3. Summary of complainant’s case
3.1 The complainant submits that
· she was employed by the respondent as a Cleaner since February 1991 in Dun Laoghaire Harbour terminal,
· she was contracted to work 4 hours a day (7-11am) from Monday to Friday and 2.5 hours on Saturday and Sunday,
· in or around 2011 Stena Line announced that their service was being discontinued at Dun Laoghaire Harbour and Stena Line employees were offered redundancy, the complainant was placed on protective notice by letter dated 2nd of November 2011 which stated that the respondent was actively seeking an alternative role for her,
· in or around the 26th of September 2012 the complainant was certified as unfit to work due to chest pains,
· the complainant was certified as fit to return to work in or around October 2014 and attended a return to work meeting on 5th of November, 2014 at which the complainant was informed that her cleaning position was no longer available as Stena Line had not renewed their contract with Dun Laoghaire Harbour,
· the complainant asked the respondent for an alternative cleaning position in the same area and with similar hours,
· the respondent wrote to the complainant on 28th of November, 2014 stating that they were unable to offer her hours in Dun Laoghaire and advising her that she was being placed on temporary layoff while they were actively seeking an alternative position for her, this letter also referred to an offer of work made to the complainant in respect of a cleaning position in Tempelogue for 3 hours a day Monday to Friday and another alternative in the Blackrock Clinic for 3 hours a day Monday to Friday. The letter gave her until 5th of December, 2014 to revert on these offers,
· the complainant refused the position at the Blackrock Clinic due to the hours being unsuitable as they were 6-9pm daily,
· the complainant refused the position in Tempelogue due to its location as she was dependant on public transport,
· the complainant was later offered a one week position in Sallynoggin which she refused as she was requested to attend a training course for the position the following day on which she was due to attend a wedding, in addition this position was only for 1 week,
· the complainant was later offered a position in City West for 3 hours per day which she refused due to its location and due to the fact that she would have to take two buses each way to get to work,
· the complainant was also offered a position in Loughlinstown for the week of 6th to 12th of November which she refused as it was only holiday cover and was not regular work.
4. Summary of Respondent’s case
4.1 It is submitted that
· the complainant worked for the respondent company in the Dun Laoghaire Harbour Terminal carrying out cleaning services up until September 2012 when she left work on health grounds,
· prior to the complainant’s departure on sickness absence, the Dun Laoghaire Harbour Company Ltd had announced that the Stena Line Service was being discontinued at the
end of 2012. As a consequence of this announcement the complainant had been advised in November 2011 that she was being placed on Protective Notice.
· this Protective Notice indicated "it is our hope and intention to secure continued employment for you within Noonan. I am actively seeking an alternative role for you within the business and will be in touch in the coming weeks to discuss available options",
· subsequent to this correspondence as her service was still continuing onsite the complainant remained in Dun Laoghaire until she went absent from work due to ill health, in September 2012,
· once the complainant had indicated that she was fit to return to work she attended a return to work meeting with Ms. D on 5 November 2014,
· during the course of this meeting the complainant was advised that there was no longer a contract on the Dun Laoghaire site, as she had been advised in 2012, and also that the company intended to try and find her alternative work elsewhere,
· during the course of this conversation the complainant did not indicate that she was suffering from any disability nor that there were any medical restrictions which would affect her ability to carry out her duties nor did she indicate to the company that there was any need to accommodate her, in relation to her health, in order to allow her to doing her job. The only matter the complainant brought to Ms. D’s attention was that she wished to work within the Dun Laoghaire / Loughlinstown area as she was dependent on public transport and did not have a her own transport,
· soon after the discussion, the complainant was advised that there was work for her in Templeogue for three hours a day Monday to Friday. The complainant declined this offer because of the location,
· on the 28th November, in correspondence between the parties, Ms. D advised the complainant that the company was able to offer work to her in Blackrock Clinic, Monday to Friday, three hours a day, 6.00 pm - 9.00pm- the complainant did not accept this offer,
· subsequent to the offer of work in the Blackrock clinic, the complainant was offered work at Woodies in Sallynoggin and was asked to attend for training but she could not attend the training on the Saturday as she already had prior commitments and, even though she was offered alternative training times, the complainant indicated that she did not think it be worth her while and therefore the position was not taken up,
· the complainant was also offered a position in Dell and another in City west which she refused due to hours and location,
· on the 24th of February 2015 the complainant raised the issue of Redundancy with Ms. M of the Human Resource Department, the complainant stated that, if the company was not in a position to employ her in Dun Laoghaire for 4 hours a day, then she should be declared Redundant, the complainant was advised that this was not a Redundancy situation because the company had tried to provide her with alternative work within reasonable transport distance and she had declined those offers of employment,
· subsequent to this correspondence was received from the complainant’s solicitors dated 23 March 2015, and 24 April 2015 alleging that the respondent had failed to offer the complainant suitable employment due to her illness,
· the respondent replied to this correspondence by letter dated 27th April 2015, outlining the attempts made to find alternative employment for the complainant,
· the complainant’s reasons for refusing these offers of employment were, in no way, to do with disabilities or ability to do the job or lack of reasonable accommodation, but related to logistical matters reflecting the preconditions regarding location of work and the hours of work , that had been laid down by the complainant,
· the respondent disputes that the complainant is a person with a disability and submits that it was not on notice of any disability.
5. Conclusions of the Equality Officer
5.1 The issue for decision by me now is whether or not the respondent discriminated against the complainant on grounds of disability, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in relation to her conditions of employment and other whether the respondent failed to provide her with reasonable accommodation. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.
5.2 Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, … that one is a person with a disability and the other is not or is a person with a different disability”.
5.3 Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.
5.4 Reasonable accommodation
5.4.1 Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability (my emphasis) – this approach was endorsed in Humphries v Westwood Fitness Club[1].
5.4.2 Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they have been employed.
5.4.3 In the case of A Health and Fitness Club -v- A Worker[2] the Labour Court set out the approach that should be taken in order that an employer can rely upon the defence set out in Section 16(1)(b) of the Acts, namely:
"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 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. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.
5.4.4 In this case the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach, which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation. This decision was also upheld on appeal to the Circuit Court.
5.5 Disability Ground
5.5.1 In the present case, it is submitted by the complainant that she is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.
“Disability” is defined in Section 2 of the Acts as meaning –
“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms. causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.
5.5.2 At the hearing, the complainant, when questioned about her disability stated that she had been absent from work due to chest pains from September 2012 to October 2014. She told the hearing that she had submitted weekly sick certs from her GP advising the respondent that she was out sick due to chest pains. The complainant went on to state that she had submitted a fitness to return to work certificate in October 2014 and that she had attended a return to work meeting in November 2014 where she was informed that her previous position was no longer available as Stena Line had not renewed its contract with Dun Laoghaire Harbour and thus the work she had been engaged in was no longer available.
5.5.3 The complainant when questioned advised the hearing that she had been advised in November 2011, prior to going on sick leave, that Stena Line were not renewing their contract and she had at the time been placed on protective notice indicating that the service delivered by the respondent on that site was to cease due to this fact. A copy of the letter of protective notice dated 2nd of November 2011 was submitted in evidence. This letter stated that the respondent was actively seeking an alternative role for the complainant. The complainant told the hearing that she became ill with chest pains in September, 2012 and that she notified the respondent that she was fit to return to work in October 2014.
5.5.4 The complainant has submitted that she was told at her return to work meeting in November 2014 that her position was no longer available due to Stena Line not renewing their contract. The complainant concedes that she was aware of this fact prior to going on sick leave in 2012. The respondent advised the hearing that the complainant was subsequently offered a number of alternative positions which the complainant refused for various reasons such as the hours of work offered and distance from her home due to the fact that she was reliant on public transport.
5.5.5 The respondent provided details of the alternative employments offered to the complainant as follows:
Cleaning Operative in Tempelogue, 3 hours a day Monday to Friday-complainant refused this position due to location.
Cleaning Operative in Blackrock Clinic 3 hours a day 6-9pm Monday to Friday-complainant refused this position due to it being night work.
Cleaning Operative in Dell 8 hours day from 6th to 12th of November –complainant refused this position as the hours were too long.
Cleaning Operative in Woodies Sallynoggin which required prior training on Saturday before job commenced –the complainant could not attend the training required as she was attending a wedding however when the respondent offered to reschedule the training the complainant stated that it might not be worth her while as it was only a temporary position.
5.5.6 The complainant at the hearing, conceded that these positions were offered to her and agreed that they were unsuitable due to location and time of day as outlined by the respondent. The complainant also stated that the position in Dell was not regular work but was only holiday cover and so it was not worth her while. The complainant went on to state that she refused the offer of a position in Citi west as she was dependant on public transport to get to work and she would not have made the start time if travelling by bus. The complainant stated that she refused the position in Blackrock clinic as she was not willing to do night work and the hours involved were 6-9pm. The complainant advised the hearing that the position in Tempelogue was not suitable due to its location and that it would have taken her two buses to get there and back. She also stated that it was not worth her while training for or accepting the position in Woodies, Sallynoggin as it was not permanent work.
5.5.7 The complainant advised the hearing that she was certified as fit to return to work in October 2014 and that she required no accommodations or special measures to enable her to return to work. The complainant in her submission to the Commission has stated that the respondent has failed to provide her with reasonable accommodation for a disability despite the fact that she advised the hearing that she was fit to return to work and submitted a return to work certificate stating that she was fit to return to work in October 2014.
5.5.8 I am satisfied that the complainant in this case was out on sick leave due to chest pains from September 2012 and that she advised the respondent that she was fit to return to work in October 2014, the complainant also confirmed at the hearing the she was fit to return to her duties and that she had submitted a certificate stating that she was fit to return to work in October 2014. She also stated that she had not required any special measures or accommodations upon her return to work.
5.5.9 In assessing whether or not the complainant suffers from a disability of which the respondent was made aware, I must bear in mind that there is a distinction between a person being on sick leave from work due to illness and a person who has a disability. The complainant in this case has submitted that she was off work suffering from chest pains. The complainant has stated that she submitted a certificate of fitness to return to work in October 2014 and stated that she required no special measures or accommodations but could return to her previous duties. Thus the respondent in this case was dealing with an employee who had been absent on sick leave and who was now fit to return to work. It is thus not unreasonable for the respondent in these circumstances to assume that the complainant was no longer suffering from that illness given that she had submitted a fitness to return to work certificate.
5.5.10 In addition, it is undisputed that the complainant was aware in November 2011, prior to her going on sick leave, that her position was in jeopardy, due to the failure of Stena Line to renew their contract with the harbour and that alternative positions were being sought for her. Thus the complainant’s claim that the change in her working conditions occurred due to her illness or due to an alleged disability cannot succeed in circumstances where she had been made aware that her position would no longer be available and the reasons why this was to happen, prior to her sick leave.
5.5.11 In addition, the complainant in direct evidence told the hearing that she was fit to return to her normal duties and that she required no accommodations or special measures to return to her duties. Even taking the respondents obligations under Section 16 (3) at its height, if the respondent had made an assumption that the complainant due to the fact that she had suffered from chest pains might not be able to carry out her duties, no evidence has been adduced that any decision was taken by the respondent, to the detriment of the complainant after, the complainant’s period of illness or notification of her illness, as all of the evidence indicates that the decision to offer her an alternative position was taken prior to her illness and that such a decision was taken due to circumstances outside of the respondent’s control i.e. the failure of Stena Line to renew their contract with the harbour. In addition, it is clear from the evidence adduced that the complainant was offered a number of alternative positions which she did not accept for reasons relating to location, hours of work and the temporary nature of some of the posts offered. It is also clear from the evidence adduced that the complainant did not cite illness or disability as reasons for her not accepting these alternative positions.
5.5.12 Thus I am satisfied based on the totality of the evidence adduced that the complainant in this case has failed to establish a prima facie case that she is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 who was discriminated against by the respondent in relation to her conditions of employment and/or other. Accordingly, I am satisfied that the complainant was not discriminated against by the respondent on the disability ground in relation to these matters.
5.5.13 In addition, I am satisfied based on the totality of the evidence adduced, that the respondent in this case did not discriminate against the complainant on the disability ground in relation to a failure to provide her with reasonable accommodation within the meaning of section 16 of the Acts.
6. DECISION OF THE EQUALITY OFFICER.
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998 - 2015 I issue the following decision. I find that
(i) the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to her conditions of employment and/or other, and
(ii) the respondent did not discriminate against the complainant on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998-2015 and contrary to section 8 of those Acts in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts.
________________
Orla Jones
Adjudicator/Equality Officer
4th of September, 2017
Footnotes
[1] [2004] 15 ELR 296
[2] Labour Court Determination No. EED037 - A Health and Fitness Club -v- A Worker (case upheld on appeal to the Circuit Court)