DEC-E2017-068

EMPLOYMENT EQUALITY ACTS

Decision - DEC–E2017-068

PARTIES

An Environmental Manager

(represented by J.D. Scanlon & Co. Solicitors)

and

A Metals Recycling Company

(represented by Mr. Padraig Lyons B.L.

on the instructions of B. Vincent Hoey & Co. Solicitors)

File References: et-157296-ee-15

Date of Issue: 7th September, 2017

1. Dispute

1.1 This case concerns a complaint by the Complainant that she was discriminated against by the Respondent on the grounds of disability contrary to Section 6(2)(g) of the Employment Equality Acts in terms of a failure to provide reasonable accommodation in accordance with the provisions of Section 16(3) of the Acts. The Complainant also claims that she was discriminatorily dismissed from her employment on the grounds of her disability.

2. Background

2.1 The Complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 23rd June, 2015. In accordance with her powers under Section 75 of the Employment Equality Acts, the Director General delegated the case on 21st March, 2017 to me, Enda Murphy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions under Part VII of the Employment Equality Acts. This is the date I commenced my investigation. A written submission was received from the Complainant on 14th March, 2016 and from the Respondent on 9th June, 2016. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 16th May, 2017.

2.2 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 the Complainant’s case

3.1 The Complainant commenced employment with the Respondent in March, 2003 and worked in the position as an Environment Manager. The Complainant claims that she was constructively dismissed from her employment on the grounds of her disability on 31st December, 2014.

3.2 The Complainant was diagnosed with fibromyalgia on 27th January, 2012 and she informed her employer that there were certain physical tasks which she could no longer perform due to muscle pain and fatigue. The Complainant submitted that she began to experience bullying by a work colleague, Ms. A in October, 2012 and she made a formal complaint to the Respondent in relation to this matter on 5th February, 2013. The Complainant went absent from work on stress related sick leave on 14th February, 2013 as a result of the bullying that she was experiencing in the workplace. The Complainant wrote to the owner of the Respondent Company, Mr. K. on 20th February, 2013 indicating that she was experiencing a flare up of her fibromyalgia which was directly attributable to the stress and upset caused by the bulling in the workplace. In this letter the Complainant referred to the request which she had previously made to the Respondent that she be moved to an alternative office in order to avoid having direct contact with Ms. A. On 26th February, 2013, the Complainant again wrote directly to the owner of the Respondent Company, Mr. K. stating “My health is directly related to the stress from the bullying I have been inflicted to at work since October, 2012. It is a known fact that to eradicate the stress of a situation one must eradicate the cause of that stress. Therefore, as I have already mentioned and requested on a number of occasions verbally and in writing I need to be separated from Ms. A and for us to have clearly defined roles with no overlaps which are communicated to both of us verbally and in writing.”

3.3 The Complainant submitted that in a medical report dated 8th March, 2013 the Occupational Health Physician, Dr. PK, nominated by the Respondent to carry out a medical examination of the Complainant noted the diagnosis of fibromyalgia and described the then state of the Complainant as: ”Still stressed. Not Sleeping appetite fair. Recurrent headaches and skin problems”. The Complainant further submitted that Dr. PK in this report gave the following summary and opinion:

“SUMMARY: This lady has been out of work since 15/2/2013 with stress/anxiety related to a bullying issue at work. She describes a numbered of symptoms and her mental state exam is consistent with stress. I understand that she has had a number of meetings with management but no resolution of the underlying issues was achieved.

OPINION: In my opinion I feel that Ms. X (i.e. the Complainant) is not fit to return to work as her stress has not resolved and the issues leading to her stress have not been addressed. If she does return to work currently I feel that she will be absent again within a short period of time. I feel if the underlying reasons for her absence are addressed then a successful return to work is achievable.”

3.4 The Complainant submits that no reasonable accommodation was afforded to her in circumstances where she had requested to work in an alternative part of the Respondent Company’s business premises, and where she had sought clear directions as to her ongoing duties and responsibilities from her employer. The Complainant submits that she has suffered unfavourable treatment in that she would at all times have remained capable and available to perform the essential functions of her employment if her employer had provided her with reasonable accommodation.

3.5 The Complainant submitted that Ms. A was subsequently promoted to a management position within the Respondent Company in late 2014. The Complainant submitted that the decision to promote Ms. A in her absence from work on sick leave was a clear indication that her position within the company was utterly untenable. The Complainant submitted that she always enjoyed carrying out the duties that were assigned to her since she commenced employment with the Respondent and that she always enjoyed a productive and cordial relationship with colleagues and customers alike, and that the difficulties she experienced with Ms. A were wholly uncharacteristic of her interactions with fellow work colleagues. The Complainant submitted that it was because she feels she had provided long and conscientious service to the Respondent that she was so genuinely aggrieved at the manner in which she was treated, particularly as the Respondent appears to have given no apparent due regard for her health and wellbeing. The Complainant submitted that she was left with no alternative but to deem that she was constructively dismissed from her employment with the Respondent on the grounds of her disability on 31st December, 2014.

3.6 The Complainant submits that fibromyalgia is a disability within the definition of Section 2 of the Employment Equality Acts. The Complainant referred to the judgement of the Court of Justice of the European Union in Sonia Chacon Navas –v- Eurest ColectividadesSA[1] and in particular to the emphasis drawn between “disability” and “sickness” at paragraphs 43, 44, 45, 46 and 47. The Complainant submitted that fibromyalgia is a condition which results in physical and psychological impairment, the condition can result in participation in professional life being hindered from time to time, and the condition is chronic insofar as it is incurable, although manageable with medication and social care supports.

3.7 The Complainant also referred to the judgement of the Court of Justice of the European Union in Fag og Arbejde (FOA) V. Kommunernes Landsforening(KL)[2] and in support of her case and in particular to paragraph 57 wherein it is stated: “the definition of the concept of ‘disability’ within the meaning of Article 1 of Directive 2000/78 come before the determination and assessment of the appropriate accommodation measures referred to in Articl5 of the same directive. According to Recital 16 of Directive 2000/78, such measures are intended to accommodate the needs of physically disabled persons and they are therefore the consequence, not the constituent element, of the concept of ‘disability’ …. ….. ” Therefore, the mere fact that such accommodation measures may not have been taken in respect of Mr. Kaltoft does not mean that he could not be a disabled person within the meaning of the directive referred to.”

4. Summary of the Respondent’s case

4.1 The Respondent operates a specialist waste metals recycling business. The Respondent submitted that the first notification received by the Company in relation to the Complainant’s stated diagnosis of fibromyalgia was by way of e-mail dated 31st January, 2012 which was addressed to the Respondent’s Director of Finance and Payroll for Senior Management, Ms. B. The e-mail identified three elements of the Complainant’s employment which she indicated that she would be unable to perform as a result of her condition. The e-mail confirmed that she had discussed the matter with Ms. C, Management Accountant, for the company. The e-mail goes on to confirm that Ms. C had advised the Complainant that these duties would be covered by other staff members. It was made clear by the Respondent in a further exchange of e-mails with the Complainant that the company was more than willing to accommodate her stated diagnosis by requesting other staff carry out duties which she had identified herself as being unable to perform. The Respondent submitted that the specific tasks identified by the Complainant were in fact removed from her obligations and were assigned to other persons. The Respondent submitted that the Complainant raised no further issues in relation to her condition and no further accommodations were requested until very close to the time when the present complaint was referred to the Equality Tribunal (on 23rd June, 2015).

4.2 The Respondent submitted that in or about January, 2013, the Managing Director, Mr. K, observed a serious row within the office environment between Ms. A and the Complainant. In order to try and resolve the difficulties arising between the parties the Respondent appointed a mediator to try and mediate the issues arising. An independent HR Consultant was retained to mediate the issue and both the Complainant and Ms. A indicated their intention to participate in the mediation process which began on 31st January, 2013. On 5th February, 2013, the Complainant submitted a formal bullying complaint by Ms. A to the Respondent and this represented the first occasion where an allegation of bullying had been made. Thereafter by e-mail dated 12th February, 2013 Mr. K acknowledged the complaint. The fact of the complaint, and the allegations made, were communicated to Ms. A by letter dated 19th February, 2013. By correspondence dated 26th February, 2013, the Complainant advised that she did not want to have the complaint of bullying dealt with in the context of the existing mediation process. Thereafter by letter dated 28th February, 2013 Mr. K wrote to the Complainant to advise that an independent third party would be retained to conduct a formal investigation into the bullying complaint.

4.3 The Respondent referred to the letter dated 26th February, 2013 from the Complainant to Mr. K in which the Complainant alleges that she had been a victim of bullying at work since October, 2012. This letter states, inter alia, “as I have already mentioned and requested on a number of occasions verbally and in writing I need to be separated from Ms. X and for us to have clearly defined roles with no overlaps which are communicated to both of us verbally and in writing”. The Respondent submitted that a number of matters arise out of this correspondence, namely:

(i) The Complainant notified the Respondent of the bullying allegation on 5th February, 2013. On 14th February, 2013 the Complainant attended for the last time at her workplace.

(ii) Thereafter, the Complainant, by letter dated 26th February, 2013, alleged a link between the location of her workstation and the alleged exacerbation of her fibromyalgia. In other words the Complainant did not raise this link until after she left the workplace.

(iii) The Complainant has produced one medical report from her GP in support of her diagnosis. The report post dates the cessation of her attending the workplace. The Report is from Dr. G and is dated 7th June, 2013. It does not of itself confirm a diagnosis of fibromyalgia but references such a diagnosis by a Rheumatologist in January 2012. The identity of the said specialist is not disclosed and it appears that Dr. G may be reciting matters advised to her by the Complainant.

(iv) Leaving aside the foregoing matters there is no medical evidence to substantiate the claim that the Complainant, in being stationed in close proximity to Ms. A, has suffered an exacerbation of her condition by reason of that.

(v) No complaint of bullying was made until 5th February 2013. Mediation had already been commenced on 31st January, 2013 as a result of a row between Ms. A and the Complainant that was observed by Mr. K on 23rd January, 2013. Certain correspondence was entered into as an independent third party was retained to conduct a formal investigation into the allegation of bullying made by the Complainant.

(vi) The Complainant made a verbal request for relocation within the office on 11th February, 2013 and this matter was brought to the attention of Mr. K on the same date. The Complainant met with Mr. K on 14th February, 2013 where she communicated her request for relocation within the office to Mr. K. This was also the last day the Complainant attended the workplace.

The investigation into the allegation of bullying was completed and a Report delivered in July, 2013. The allegation of bullying was not upheld.

4.4 The Respondent relied upon the case of Humphries –v- Westwood Fitness Club[3] wherein the Circuit Court assessed the requirements incumbent on an employer to make reasonable accommodation pursuant to Section16(3)(b) of the 1998 Act. The Respondent submitted that this case, notwithstanding the subsequent legislative modifications, represents the applicable law in assessing the obligations on an employer in the situation which pertains here. It was submitted that the Circuit Court in that case, advised that, in practical terms reasonable accommodation requires a two stage enquiry. In the first instance the Circuit Court advised it is incumbent upon employers to look upon the factual position concerning the employee’s capabilities including the degree of impairment arising from the disability and its likely duration. The first stage of the process is met by the employer properly examining the medical evidence available.

4.5 The Respondent submitted that in the instant case the Company accepted the modifications suggested by the Complainant in her e-mail of 31st January, 2012. The Respondent implemented the modifications and ensured that, from thereon out, the tasks identified as inappropriate did not form part of her remit. The Respondent submitted that in doing so it clearly took appropriate measures to ensure the Complainant suffered no discrimination by reason of her stated diagnosis of fibromyalgia.

4.6 The Respondent submitted that in the case of Humphries –v- Westwood Fitness Centre it wasalso held that, if the employee is not fully capable, 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. In this case all modifications that had been requested were arranged. The Respondent submitted that it is quite clear that the re-assignment of tasks, at the Complainant’s request, was an appropriate measure such that the Respondent fully complied with its statutory obligations. The Complainant’s own e-mail of 31st January, 2012 recites that, apart from the tasks identified “all my other duties I can continue doing”. The Respondent submitted that thereafter the Complainant made no complaint of bullying until 5th February, 2013 and did not raise any link between the stress (allegedly cause by her proximity to Ms. A) and the exacerbation of her stated condition until 26th February, 213 approximately two weeks after she had last attended the workplace.

4.7 The Respondent submitted that even if one accepts that the Complainant has suffered stress due to the nature of a poor working relationship between herself and Ms. A, it has at all times acted appropriately. On becoming aware of a tension between the Complainant and Ms. A, with respect to the delineation of their roles, the Respondent retained and paid for an independent HR firm to mediate the dispute. Thereafter, when the Complainant indicated that she did not wish to engage in mediation, the Respondent conducted an independent investigation and, given the finding that no bullying took place, was not advised to implement any change in the work layout. The Respondent submitted that it is difficult to see what more the Company could have done, bearing in mind the competing obligation on it to ensure that Ms. A was afforded fair procedures and that not step was taken which could be perceived by her as a pre-determination of the matters at issue. The Respondent further submitted that the Complainant has brought this complaint without having adduced direct medical evidence to support the diagnosis of fibromyalgia and without any evidence that a re-location of her seating arrangement would cure any exacerbation of her condition (which exacerbation is itself disputed).

4.8 The Respondent submitted, without prejudice to the foregoing, the Complainant requested re-location at a time when she was no longer attending the Respondent’s premises. Hence, even if it is found, as a matter of fact, that re-locating her to an alternative location would amount to reasonable accommodation, the Respondent cannot be faulted for not having done so since the request was made at a time when she was not at work. Moreover, the Complainant never returned to work after the request was made. The Respondent submitted for that reason alone, and without prejudice to the foregoing, the complaint must fail.

4.9 The Respondent denies that the Complainant was dismissed from her employment, either constructively or otherwise, and it submitted that she left her employment of her own volition. The Respondent submitted that the Complainant ceased working on or about 14th February, 2013, some 9 days after the complaint of bullying was made and did not subsequently return to work prior to the termination of her employment. The Complainant subsequently requested her P45 and ultimately ceased her employment on 31st December, 2014. The Respondent submitted that the Complainant was paid in full from the date she ceased to attend the Respondent’s premises up to 2nd September, 2013. The said period was recorded as either paid sick leave or authorised leave pending the completion of the workplace investigation. The Complainant thereafter delivered certificates, specifying that she was unfit for work from time to time. However, for protracted periods, in particular from 31st May, 2013 to 28th November, 2013 no certification was provided. The respondent submitted that the period during which the investigation was running was authorised leave but during the remainder of that time the Complainant was effectively on unauthorised leave.

5. Conclusions and Findings of the Equality Officer/Adjudication Officer

Issue of Jurisdiction – Time Limits

5.1 The Respondent submitted that the claim of discriminatory treatment in terms of a failure to provide reasonable accommodation in accordance with the provisions of Section 16(3) of the Acts has not been referred within the time limits prescribed in Section 77(5) of the Acts. The Respondent submitted that the alleged discriminatory treatment in relation to the Complainant’s request for reasonable accommodation occurred in February, 2013 after she had made a request to be relocated to a different workstation within the Respondent’s premises. The Respondent submitted that, as the complaint in relation to this claim was referred to the Equality Tribunal on 23rd June, 2015, it was outside of the six month time limit prescribed in Section 77(5)(a) of the Acts.

5.2 The Complainant submitted that the alleged discriminatory treatment in terms of the Respondent’s failure to provide the Complainant with reasonable accommodation within the meaning of Section 16 of the Acts was ongoing over a period of time from February, 2013 until her employment was terminated on 31st December, 2014. The Complainant claims that there was engagement between the Complainant (both personally and through her legal representatives) and the Respondent during this period in relation to the matter and that the most recent occurrence of the alleged discriminatory treatment took place on 31st December, 2014 i.e. the date her employment was terminated. The Complainant claims, therefore, that the discriminatory treatment in relation to this matter was ongoing until 31st December, 2014 and as a result the claim was in fact referred to the Tribunal within the prescribed time limit.

5.3 Section 77(5) of the Acts provides as follows:

“(a) Subject to subsection (6), 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 month from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

Section 77(6A) of the Acts provides as follows:

“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,”

5.4 The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Tribunal unless the discrimination in issue is part of a continuum of events. In considering this matter, I have taken note of the case of County Cork VEC –v- Ann Hurley[4] the Labour Court held that: “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 IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”. The Labour Court also held in this decision that: “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 or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely. ”

5.5 In the present case it is clear that the Complainant initially raised issues in relation to the provision of reasonable accommodation in terms of a relocation to a different office within the Respondent’s premises in or around February, 2013. I am satisfied that the issues surrounding the provision of reasonable accommodation in this regard were ongoing between the parties from this time until the Complainant’s employment was ultimately terminated on 31st December, 2014. In the circumstances, I am satisfied that the alleged discrimination was still ongoing for the purposes of section 77(6A) of the Acts up until that date. Therefore, as the present complaint was referred to the Tribunal on 23rd June, 2015, I find that this was within the six month time limit for the referral of a complaint. Accordingly, I find that I have jurisdiction to investigate the claim of discriminatory treatment in relation to the provision of reasonable accommodation within the meaning of Section 16 of the Acts.

Findings on the Substantive Issues

5.6 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 in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

5.7 In the case of Melbury Developments v Arturs Valpetters[5] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

5.8 Section 6(1) of the Employment Equality Acts 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 either is not or is a person with a different disability". I am satisfied that the Complainant has been diagnosed with fibromyalgia and that this condition constitutes a disability within the meaning of Section 2 of the Employment Equality Acts. Furthermore, I am satisfied that the Respondent was aware of the existence of the Complainant’s disability at all material times relevant to this complaint.

5.9 Accordingly, the issues for decision in this case are (i) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts and (ii) whether she was discriminated against by the Respondent in relation to constructive discriminatory dismissal on the grounds of disability. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Reasonable Accommodation

5.10 The first element of the complaint which I am required to consider relates to the Complainant’s claim that the Respondent failed to provide her with reasonable accommodation in terms of facilitating her with relocation to an alternative office within the workplace. The Complainant contends that she had been subjected to bullying in the workplace by a colleague, Ms. A, during a three month period from October, 2012 to January, 2013. The Complainant claims that the alleged bullying to which she had been subjected by Ms. A and the resultant stress of the situation had exacerbated her fibromyalgia. The Complainant subsequently requested relocation to an alternative office within the Respondent’s premises and for the delineation of both her and Ms. A’s respective roles in order to alleviate the stress which had caused the exacerbation of her fibromyalgia. She contends that the Respondent’s failure to accommodate her request for relocation to a different office away from Ms. A amounted to a failure to provide her, as a person with a disability, with reasonable accommodation in the workplace.

5.11 The Respondent disputes the claim that the refusal to relocate the Complainant to an alternative office amounts to a breach of its obligations under Section 16 of the Acts. The Respondent contends that the Complainant has not adduced any evidence to support the contention that her seating arrangement within the workplace at that juncture was in any way connected to the alleged exacerbation of her fibromyalgia or that relocation to an alternative office would have alleviated the symptoms of her condition. Therefore, the issue that I must decide is whether or not the Respondent’s refusal to accede to the Complainant’s request for relocation to a different workstation amounted to a failure to comply with its obligations under Section 16 of the Acts.

5.12 On a practical basis, Section 16 of the Acts as interpreted in the case of A Health and Fitness Club -v- A Worker[6] upheld by the Circuit Court (Humphreys v Westwood Fitness Club[7]), requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake his/her duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision”.The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel[8] as: “The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”.In An Employer -v- A Worker[9], the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…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”.

5.13 In considering this issue, I note that it was not in dispute between the parties that the Complainant initially informed the Respondent about her disability by way of e-mail on 31st January, 2012. In this e-mail the Complainant referred to the diagnosis of fibromyalgia by her consultant and identified three elements of her work which she believed that she would be unable to undertake going forward as a result of her disability. Neither was it in dispute that the Respondent immediately put arrangements in place to accommodate the Complainant by re-allocating the identified duties to other members of staff. I am satisfied that the measures which the Respondent put in place at that juncture facilitated the Complainant to undertake her duties within the workplace, and in doing so, the Respondent was complying with its obligations under Section 16 of the Acts. I am satisfied that the Complainant did not raise any further issues in relation to her disability or signal the requirement for any further accommodations to be put in place until after the alleged workplace bullying issues by Ms. A were raised by her in later January, 2013.

5.14 It is clear from the evidence adduced that serious difficulties had developed in the working relationship between the Complainant and Ms. A during the latter part of 2012/early 2013. The Respondent adduced evidence that the Managing Director, Mr. K, witnessed a serious row within the office between the Complainant and Ms. A on 25th January, 2013 and it was not disputed that the Respondent immediately sought to have the matter resolved between the parties by way of mediation. The mediation process sought to clarify the respective roles of the Complainant and Ms. A in order to address the difficulties that had arisen. The Complainant subsequently withdrew from the mediation process and submitted a formal bullying complaint against Ms. A to the Respondent on 5th February, 2013 alleging that she had been subjected to “repeated inappropriate behavior, directly and indirectly verbally and otherwise by undermining my right to work” during the preceding three months. The Respondent commissioned an external firm of HR consultants to carry out an independent investigation in relation to the bullying complaint made by the Complainant and the investigation took place during the period from 20th March, 2013 to 17th July, 2013. The Complainant went absent from work on sick leave on 14th February, 2013 and was paid in full by the Respondent until 2nd September, 2013. The investigation into the bullying allegations was completed on 17th July, 2013 and in the subsequent Report the allegation of bullying was not upheld.

5.15 The central plank of the Complainant’s claim on this issue relates to the contention that the alleged bullying to which she had been subjected by Ms. A and the resultant stress of the situation had exacerbated her fibromyalgia. She contends that the Respondent’s refusal to relocate her to another office amounted to a failure to provide reasonable accommodation. I note the first occasion that the Complainant informed the Respondent there was a link between the location of her workstation and the exacerbation of her fibromyalgia was in her letters dated 20th and 26th February, 2013 when she referred to her request to be separated in the workplace from Ms. A. The Complainant did not provide the Respondent with any medical reports at that juncture to support her contention regarding the alleged link between the location of her workstation and the exacerbation of her fibromyalgia. I also note that the Respondent replied to the Complainant’s correspondence on 21st and 28th February, 2013 and indicated that in order to accommodate her request to be separated from Ms. C that she should remain on paid leave until the investigation into her bullying complaint was complete. The Respondent also requested the Complainant to attend its Occupational Health Physician (Dr. PK) at that juncture in order to ascertain her medical condition for the purpose of managing it in the best way possible from a work perspective and to ensure she was fit to engage in the investigation into the bullying complaint.

5.16 The Complainant attended the Occupational Health Physician on 8th March, 2013. The Report by Dr. PK referred to the Complainant being absent from work with stress/anxiety related to a bullying issue at work and he opined that she would not be fit to resume work until the issues leading to her stress had not been resolved. I find that it is significant in the context of the present complaint that this medical report on the Complainant’s condition attributes her absence from work to stress/anxiety related to the alleged bullying issue and it does not make any link between the alleged bullying and an exacerbation of her fibromyalgia or the requirement for her to be relocated to an alternative office to accommodate her disability. In the circumstances, I have not been presented with any medical evidence from which I could reasonably conclude that the location of the Complainant in the same open plan office as Ms. C was responsible for an exacerbation of her fibromyalgia or that relocation to another office would have alleviated the symptoms of her condition. I am satisfied that the Respondent acted in accordance with the recommendations of its medical advisors in terms of putting measures in place (i.e. the commissioning of an independent investigation) to try and address the underlying reasons for the Complainant’s absence. In doing so, I am satisfied that the Respondent complied with the process-orientated approach required of employers as developed by the case law which requires employers to take account of medical evidence in terms of its obligations under Section 16 of the Acts.

5.17 Based on the evidence adduced, I am satisfied that the Respondent acted appropriately regarding the manner in which it dealt with the workplace bullying complaint which had been raised by the Complainant in terms of the initiation of the independent investigation. The Complainant’s complaint of bullying was not upheld following the completion of the investigation and I have not been presented with any evidence to suggest that the manner in which this investigation was carried out was anything other than fair and impartial. Accordingly, I find that the Respondent has not failed in its obligation to provide reasonable accommodation to the Complainant as a person with a disability in terms of the manner in which it dealt with the Complainant’s request for relocation to an alternative office.

Discriminatory Constructive Dismissal

5.18 The next element of the Complainant’s complaint which I must decide relates to the claim that she was subjected to a discriminatory dismissal by the Respondent on the grounds of her disability. The Complainant claims that the Respondent failed to make any contact with her in terms of facilitating a return to work after the conclusion of the investigation into her bullying complaint. She claims that her position became untenable after it came to her attention that Ms. A had received a promotion following the conclusion of this investigation while she was absent from work on sick leave. The Complainant claims that in the circumstances she was entitled to draw the inference that she would have no prospect of receiving any reasonable accommodation within the organisation, and accordingly, she was left with no option but to deem that she was constructively dismissed from her employment.

5.19 The fact of dismissal was in dispute between the parties. The Respondent denies that the Complainant was dismissed, either constructively or otherwise, and contends that she resigned from her position of her own volition after she failed to return to work following the completion of the investigation into the bullying complaint which she had raised against Ms. C. Therefore, the issues which I must decide in relation to this element of the Complainant’s claim are (1) whether or not the Complainant was dismissed within the meaning of Section 2(1) of the Acts and (2) in the event that a dismissal occurred was the dismissal attributable to the Complainant’s disability.

5.20 Section 2(1) of the Acts defines dismissal as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

In An Employer -v- A Worker (Mr. O No. 2)[10] the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the Complainant to establish that the behaviour of the Respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from her employment.

5.21 In considering this issue, I note that the investigation in relation to the Complainant’s bullying complaint concluded on 26th July, 2013 following the completion of the Report by the independent firm of HR Consultants. The Complainant had been absent from work on sick leave from 14th February, 2013 until the investigation was completed and she remained absent from work until the termination of her employment on 31st December, 2014. I am satisfied that the Respondent failed to engage with the Complainant following the conclusion of the investigation or in the subsequent months to establish the actual situation in relation to her medical condition or to try and put measures in place to facilitate her return to work.

5.22 In this regard, I find that the Respondent’s approach was totally inconsistent in terms of the manner in which it sought to deal with the Complainant’s disability both prior to and in the period following the completion of the investigation. The Respondent adopted a very proactive and measured approach during the initial stages of the Complainant’s absence on sick leave including taking the step of referring her to an Occupational Health Physician (Dr. PK) for medical assessment (in March, 2013) and thereby complying with the process orientated approach required under Section 16 of the Acts. However, following the completion of the investigation the proactive approach which had been previously adopted did not continue and the Respondent ceased engagement with the Complainant and did not seek to have any further assessments carried out in relation to her medical condition with a view to ascertaining if/when she would be in a position to return to work. The Respondent contended that the Complainant failed to provide certification in relation to her medical condition for protracted periods following the completion of the investigation and that she was effectively on unauthorized leave during these periods. However, it is clear from the records which the Respondent submitted in evidence that the Complainant remained on sick leave following the completion of the investigation. In the circumstances, I am satisfied that there was an onus upon the Respondent in terms of its obligations under to Section 16 of the Acts to, at the very least, try and establish the factual position in relation to the Complainant’s medical condition with a view to ascertaining if/when she would be in a position to return to work. I find that the Respondent clearly failed to comply with its obligations in this regard. I accept the Complainant’s evidence that, notwithstanding the findings of the investigation, she had fully intended to return to work subject to her being medically fit to do so, but given the lack of contact from the Respondent she felt that there wasn’t a willingness on its part to facilitate her return.

5.23 The Complainant’s solicitor ultimately wrote to the Respondent on 13th October, 2014 indicating that the Complainant felt at that juncture that she had been left with no alternative but to deem that she had been constructively dismissed from her employment. I am satisfied that the Respondent could and should have taken the opportunity at that juncture to clarify the position in relation to the Complainant’s employment situation and any confusion that existed in relation to the perceived promotion of Ms. A to a management position. The Respondent adduced evidence at the hearing that Ms. A did not receive a promotion and had resigned from her position to take up alternative employment elsewhere at that juncture. However, the Respondent failed to provide the Complainant with any clarification in relation to this matter at that juncture or any intimation that her job was still available and ultimately she was issued with her P45 31st December, 2014.

5.24 In the circumstances, I find that the Respondent’s failure to engage with the Complainant during the period following the completion of the investigation in order to establish the factual position in relation to her medical condition with a view to facilitating her return to work was inexplicable and totally unreasonable. The Respondent did not offer any reasonable explanation for the breakdown in communications between the parties following the completion of the investigation of her bullying complaint. I am satisfied that the manner in which the Respondent conducted itself in relation to the Complainant during this period was destructive of the relationship of mutual trust and confidence that had previously existed between the parties. In the circumstances, and given the significant period of time that had elapsed following the completion of the investigation without any engagement by the Respondent to clarify the situation in relation to her employment, I find that it was not unreasonable for the Complainant to assume that her position was no longer tenable and that she was justified in terminating her contract of employment.

5.25 Having regard to the foregoing and the totality of the evidence adduced, I find that the Complainant’s employment came to an end in circumstances amounting to a dismissal within the meaning of Section 2(1) of the Acts, and there was an inextricable link between the Complainant’s dismissal and the fact of her disability. Accordingly, I find in favour of the Complainant in relation to this element of her complaint.

6. Decision

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that:

(i) The Complainant has failed to establish a prima facie case that as a person with a disability within the meaning of Section 2 of the Acts, the Respondent failed to provide her with reasonable accommodation contrary to Section 16(3) of the Acts and therefore this complaint is not upheld; and

(ii) The Respondent did discriminatorily dismiss the Complainant contrary to Section 8(6) of the Acts. Accordingly, I find in favour of the Complainant in relation to this element of her complaint.

6.2 In accordance with Section 82 of the Acts, I order the Respondent to pay the Complainant the sum of €26,250 by way of compensation for the distress suffered as a result of the discrimination. In making my decision I have also had regard to Article 17 of the Framework Directive that the sanction should be “effective, dissuasive and proportionate” and as such this award equates to approx. nine month’s gross pay for the Complainant. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.

______________

Enda Murphy

Equality Officer/Adjudication Officer

7th September, 2017

Footnotes

[1] Case C-13/05

[2] Case C-354/13

[3] [2004] E.L.R. 296

[4] EDA1124

[5] EDA0917

[6] EED037

[7] [2004] E.L.R 296

[8] EDA0721

[9] EDA0413

[10] EED410