Complainant

Respondent

Parties

Doreen Davis

Turas Training Limited

Representatives

Amanda Kane Mandate Trade Union

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010437-001

27/03/2017

The Complainant was employed as Assistant Project Co-Ordinator with the Respondent Company from 21st January 2008 until the employment terminated on 25th January 2017 with an additional 8 weeks paid in lieu of notice. The Complainant was paid a daily rate of pay of €174.00 and she was provided with a written statement of her Terms and Conditions of Employment. The Complainant referred a complaint to the Workplace Relations Commission on 30th March 2017 alleging the Respondent had discriminated against the Complainant on grounds of her Disability in relation to their failure to provide her “reasonable accommodation” in victimising her and discriminating against her in relation to her conditions of employment.

The Complainant was employed as full-time Assistant Project Co-Ordinator effective from 21st January 2008. She was provided with a written statement of her Terms and Conditions of Employment which included working 35 hours a week from 9.30am to 5.30 pm over 5 days. She was provided with a detailed list of her Duties and Responsibilities and she reported to the Project Coordinator. The Respondent is a holistic rehabilitative education and training programme specifically designed as a response to the needs of stabilised drug users and is a special Community Employment Scheme funded by the HSE and the Department of Social Protection. As Assistant Project Co-ordinator she had responsibility for managing the rehabilitation service and supervising full-time and part-time staff. She also had sole responsibility for Health and Safety and she also dealt with 11 clients where she managed treatment programs for these clients with addictions. She was advised by letter dated 25th January 2017 that he employment was terminated.

The Complainant was diagnosed with Mixed Connective Tissue Disease in 2012 which is dominated by severe pain in her knees as the joints become damaged by severe arthritis, which is exacerbated when she walks or climbs stairs. Other symptoms include fatigue and raised body mass index. On 9th November 2012 the Complainant requested a temporary reduction in her working week from 5 days to 4 days for a 6 month period. To enable her medical team to assess her medical condition and any impact it may have on her employment. She was advised on 5th December 2012 that her request was granted. She remained working a 4 day week until May 2014 when she was requested to return to full-time work over 5 days. The Complainant responded indicating she would return to full-time work from 16th June 2014 but she requested that she be allowed to commence at 8am to 4pm Monday to Thursday and 8.45am to 2.30 pm on Friday as she stated she got tired in the afternoons. She requested a three month trial to be reviewed in August 2014.

The Complainant entered a Hospice from 19th November to 8th December 2014. A named Consultant wrote to the Respondent on 3rd December 2014 recommending as follows – “(Complainant’s) condition requires active employment of self-management strategies, which she currently cannot engage with on account of the energy required for full-time work in a mentally demanding role. I would therefore recommend a reduction of work hours to three days per week.”. The Consultant also recommended a number of changes to her work station in relation to Chair -Desk Screen and Keyboard and Mouse. The Complainant had been requested to do some work while in the Hospice in relation to training needs analysis for 2015 and she forwarded same on 18th November 2014. The Complainant returned to work on 8th December 2014 and on 21st December 2014 the Complainant set out a detailed proposal that would allow her to work 2 days from home and 3 days in the office for a period of 6 months. This was acknowledged on 22nd December 2014. The Respondent replied on 13th January 2015 in part as follows – “Considering the needs of the organisation, working two days from home is not possible, the decision is to approve your request for a three-day workingweekon a pro rata basis only to be reviewed after three months”. The Complainant was on certified sick leave from 19th January 2015 until she was certified fit to return to work in August 2015. She did receive some letters from the Respondent during this period concerning a possible return to work date. She notified the Respondent on 8th July 2015 that she would be fit to return to work in September 2015 and she also requested sanction to provide monthly certificates only but she was informed of the policy which requires weekly medical certificates. She also requested a return to work on a three day basis as advised by her medical consultant. The Complainant was invited to attend for medical assessment with Medmark on 17th August 2015. Medmark issued their medical report on 21st August 2015 and held in part as follows – “She is fit to return to work in her capacity of Assistant Programme Coordinator……..Her specialist has advocated that she return to work for no more than three days per week and if operationally feasible I would also support this recommendation….”

The Complainant made a data request on 22nd August 2015 requesting the names and contact details for the Board Members of the Respondent. This was refused. The Complainant was requested to attend a Board Meeting on 4th September 2015 but the Complainant informed the Respondent she would be unable to attend. The Meeting was rescheduled for 10th September 2015. The Complainant was represented at that meeting by her Trade Union MANDATE. They discussed her medical reports and also agreed to seek the advice of an Occupational Health Assessor to assess her workplace and to make any necessary adjustments to facilitate her return to work in October 2015. The Respondent advised the Complainant that an Occupational Assessment was necessary for Health and Safety and insurance reasons before her return to work. The Occupational Health Assessor commenced their work on 12th October 2015 and provided their report on 12th November 2015 in relation to the Car Park – Office – Workstation. The Respondent informed the Complainant “that the Board of Management is pleased to accept the recommendations and looks forward to finalising the report and welcoming, named, back to work. It will take time to secure financing and complete the work listed in the engineer’s report. Every effort will be made to expedite this work”. The report also set out the duties and job description but there appeared to be significant changes in the roles and responsibilities of the Assistant Project Coordinator which the Complainant disagreed with. The report recommended that the Complainant work 21 hours a week over 5 days from 9.20am to 1.30 pm. The report also noted that regular and long term absence could not be accepted and may result in the” Board of Management considering the reasonable accommodation facility being reviewed with a view to frustration of contract.

MANDATE, on behalf of the Complainant responded by letter dated 19th November 2015 raising a number of concerns. The Final Report dated 16th November 2015 was issued on 9th December 2015. The offer was to request the Complainant to work 21- 25 hours over 5 days and that she would be paid for 25 hours per week and they also outlined that financial assistance would be required from the Funders to do the required work. Due to the delay in the Complainant returning to work she was paid €6803.16 for loss of earnings on 4th December 2015. The Respondent wrote to the Complainant indicating that a further report had been requested from MedMark in relation to their assessment of the Complainant returning to work 4 hours a day over 5 days and Medmark stated as follows – “!I would support this measure as it would be in keeping with the intention of allowing (named) time to rest and recuperate during her working week”.

MANDATE on behalf of the Complainant advised that the Complainant was not in a position to accept the second Medmark report and advised the hours were not the problem rather the number of days. They also advised their concerns that the proposed changes to her role of Assistant Project Coordinator and the duties pertaining to that role was being undermined, thereby victimising her. The Respondent was advised that the matter would be referred to the WRC under Equality Legislation.

A named Consultant, representing the Respondent, contacted MANDATE and a meeting took place on 20th January 2016 where an agreement was reached and accepted by the Complainant on 22nd January 2016 and in part provides as follows – “the Board is prepared to offer (named) the opportunity to return to work on a three day week basis subject to a three month review to determine if she can carry out the duties as outlined in the job specifications for Assistant Project Coordinator. Additionally, that (named) agree to an independent medical assessment to determine her ability to work an agreed flexible schedule of 21 hours, subject to agreement of both parties”. It was agreed that the Complainant return to work on 4th February 2016 to enable the necessary workplace arrangements. This agreement also stated that if the Complainant was not in a position to carry out her duties the Board could reconsider her future employment.

On 12th February 2016 the Hospice Care Services wrote to the Respondent advising of the recommendations required including office location downstairs, to be supplied with an appropriate chair, desk, screen, mouse etc. When the Complainant arrived for work on 4th February 2016 there was no office for her to go to and she was left sitting at reception. When the named Respondent arrived at reception he stated he had not been informed of her return on that date

She had to return to work in her office upstairs where she worked for a number of weeks before this was declared a health and safety risk. She was moved to a downstairs office. She identified a number of concerns concerning the facilities provided to her on the ground floor. She wrote to the HSE requesting a number of Aids which were provided

She also had to share her office with a number of other employees who adjusted her chair to their needs and then she was required to make the adjustments. Supervision of staff duty was removed from her and she felt undermined by this. She also was put under pressure from a named employee of the Respondent.

The Complainant attended all her medical appointments on her days off and was not absent following her return in February 2016. She stated that yes some days were changed to facilitate her appointments but that she also facilitated the Respondent. The Complainant requested the names of the Board members and she was provided with the name of the Chairman as she was required to apply to the Board for annual leave. She did write to the Chairman for annual leave to attend the Hospice but there was no reply. She was advised her annual leave had been sanctioned and she attended the Hospice from 8th to 18th March 2016.

The named Respondent contacted the Complainant in her office on 18th May 2016 in relation to an entry error on the system which turned out not to be an error but this named employee was very abusive to her which continued for an hour. She was afraid and locked her door where she remained for the rest of her working day. She filed a grievance complaint on 19th May 2016 concerning the named employee’s aggressive behaviour towards her. The named employee responded on 25th May 2016 refuting all the allegations.

The Complainant advised the Respondent of her forthcoming surgery on 25th July 2016 and her GP provided the Respondent with all the information that had been requested.

The named Employee whom she had lodged a grievance against requested a meeting with her on 17th June 2016 following which she withdrew her complaint. She stated that she was assured before she left for her planned surgery that she could return to work on her 3 day week terms. She went on annual leave one week prior to her surgery on medical advice. She had her first surgery in August 2016 and she advised the Respondent of her second surgery to take place in November 2016 and that she expected to return to work in late January 2017. She stated she was not invited to attend the Christmas Lunch. She advised the Respondent on 20th December 2016 that her surgery went well and she was informed on 3rd January 2017 that the Board would be in touch concerning her return to work. She was informed on 3rd January 2017 to confirm that she would return to work on a full time basis and to respond by 13th January 2017 and that if she failed to “attend work on a full time basis as set out in this letter, the Board may be left with no option but to terminate your ongoing employment with the Company”. The Complainant responded on 13th January 2017 attaching a medical certificate stating that she would return to work on 23rd January 2017 but her GP had requested her return on a three day week basis. The Board of Management met on 11th January 2017 but she stated her return was not discussed but she did receive a letter dated 16th January 2017 effectively requesting her to comply with a return to work on a full time basis. MANDATE wrote to the Respondent on 17th January 2017 requesting them to comply with their legal obligations and to confirm that no decision would be made to dismiss and that every effort would be made to accommodate the Complainant. There was an exchange of correspondence with the Respondent issuing a letter dated 25th January 2017 stating “we are unfortunately at a point where we can no longer accommodate any further periods of three-day working week, or indeed any arrangements other than that which is detailed in (named) signed contract of employment”. The Complainant was informed by letter dated 25th January 2017 that her employment was terminated with no possibility of an appeal. The matter was referred to the Workplace Relations Commission on 27th March 2017.

The Complainant and her Trade Union MANDATE referenced a number of Decisions of the Equality Tribunal, the Labour Court in support of their arguments that the Complainant had been discriminated against by the Respondent on the grounds of her Disability.

The Respondent raised an issue that despite the fact that the WRC Complaint Form requires the Complainant to provide a statement to the Director General setting out the facts etc. They stated that they received the Complainant’s submission on 5th February 2018 and the Hearing was scheduled for 8th February 2018. They also raised a further preliminary issue in relation to the complaint of discrimination in relation to her terms and conditions of employment which are unspecified in the submission. A further point was raised in relation to the complaint of victimisation which they stated as a cause of complaint arises out of protections for a Complainant who has previously made a complaint. The Complainant did not previously make any complaint and therefore could not have been construed as having suffered victimisation.

The Respondent also stated that a number of matters were not in dispute – (1) the Complainant comes within the protected category of disability (2) that the Respondent’s inability /unreasonable requirements placed upon it to respond to the needs of the Complainant has resulted in the dismissal of the Complainant. But the Respondent argued that the Complainant frustrated the contract of employment, not by her inability to perform it due to her disability, but by her refusal to countenance any other working arrangement other than her demands of three days per week.

The Respondent is a rehabilitative education and training programme funded by the HSE and the Department of Social Protection and it is also a registered charity. It provides addiction and education services to individuals in recovery from substance abuse. The services are delivered through a structured day programme that runs from 9.15am to 3.30pm Monday to Thursday inclusive with other services running on Friday and some evenings. They have a capacity for 50 CE places, with 37 designated to the substance places and 13 are mainstream CE places. Three Posts are funded by the HSE, Project Coordinator, Assistant Project Coordinator and Administrator. In addition the Respondent was also a management organisation for a programme funded through a named Task Force but this initiative which employed one full-time staff and a support worker through CE was relinquished in 2017 as the strain of managing this without an Assistant Project Coordinator made it impossible for the Respondent to fulfil their commitments.

The Complainant was employed as the Assistant Project Coordinator on 21st January 2008 with a Contract of Employment – copy provided. She was employed as per this Contract on a full time basis which required her to work 35 hours Monday to Friday from 9.30am to 17.30pm.

During 2012 the Complainant was diagnosed with MCTD and in December 2012 the Complainant requested and was granted a temporary reduction in her working hours to a four day working week for a period of 6 months by letter dated 5th December 2012. The Complainant’s work was carried out by some CE staff and the Project Coordinator in order to facilitate this. This was followed by a second 6 month temporary arrangement to end in January 2014. The Respondent was in receipt of a third request for a further 6 month in December 2013. Following discussion at the Board the Respondent stated it was not conductive to the work of the organisation and the Complainant’s specific position it was agreed to give a 3 month extension up to 30th April 2014 and in the letter dated 28th January 2014 the Respondent clearly outlined to the Complainant that a shorter working week did not meet the operational requirements of the Respondent. The Complainant wrote to the Project Coordinator on 8th May 2014 seeking a reduction in her working hours to 31 hours a week over five days. The Respondent agreed to sanction this request where the Complainant would work 8am to 4pm Monday to Thursday and 8am to 2.30pm on Fridays for a period of three months. Then on 16th December 2014 the Complainant requested she work on site for three days and at home for two days. The Respondent considered the medical advice and following discussion it was agreed to grant a 3 day working week for a 3 month period but it could not facilitate home working due to the essential element of the Complainant’s role being to focus on the supervision of frontline services and daily face to face with both clients and staff. This was being accommodated by increasing the workload of other staff. This was communicated to the Complainant on 13th January 2015. The Complainant commenced sick leave which lasted for 6 months. The Complainant kept in regular contact with the Complainant. In July 2015 the Complainant indicated a return to work in September 2015 and requested she return on a three day week.

Following this request the Complainant was requested to attend for an independent medical assessment in order for the Respondent to consider whether returning to work was feasible and whether this could be on a full time basis with accommodation and she was informed that a three day week would not accommodate operational needs. Medmark was appointed and they outlined their opinion on 21st August 2015 where they recommended that the Respondent permit the Complainant to return to work on a three day week basis if this was operationally feasible. The Board requested to meet the Complainant and they met on 10th September 2015 where the Complainant attended with her Trade Union Representative. A return to work on a three day basis was discussed as well as the engagement of an Occupational/Ergonomic Assessor to provide advice on the feasibility of the Complainant returning on a full time basis with the possibility of obtaining a grant for any workplace adaptions. The Respondent informed the Complainant that this assessment was required before her return to work for health and safety and insurance reasons. These assessments took place from 15th October to 16th November 2015 by a named Company. This recommended the installation of a chair lift and a designated car space but made no reference or recommendation to the number of days to be worked. However the Company, named, did advice the Complainant of a proposal to return to work 5 days a week on reduced hours of 21 – 25 hours a week. This to be put in place for a period of 3 months. This was not acceptable to the Complainant. A further report issued to the Respondent on 2nd December 2015 in which the Company stated they would “support this measure as it would be in keeping with the intention of allowing (named) time to rest and recuperate during her working week and thereby lessen her reported symptoms”. Based on this report a return to work proposal was provided to the Complainant but the Complainant’s Union Representative informed the Respondent that she had recommended to the Complainant not to return to work on the basis of the proposals. However there was no attempt made by the Complainant to try this pattern pf working or to give any consideration to the operational requirements of the Respondent.

The Respondent engaged another independent advisor, named, who facilitated further dialogue which resulted in the Respondent agreeing the Complainant could return to work on a three day week basis pending the outcome of additional review including whether the Complainant had the ability to return to work for 21 hours per week over 5 days. The Complainant returned to work mid January 2016.

The Complainant commenced sick leave in July 2016 for a period of 6 months. In a separate development the Respondent commenced strategic planning for the period 2017 to 2020 with the assistance of a named Company. This raised the impact the uncertainty and part time nature of the Assistant Project Coordinators role was having on the organisation. The Board made the decision that the current situation could not continue, in summary, for the following reasons – inconsistent service to clients – duties of the Assistant Project Coordinator not being fulfilled – the duties of the Complainant were in large part being done by the Project Manager to the detriment of his own role – inability to future plan and the Complainant’s insistence to only work 3 days a week and not to countenance any other working arrangement. There was also the fear of the withdrawal of funding.

The Complainant notified the Respondent of her intention to return to work on 23rd January 2017. By letter dated 3rd January 2017 the Respondent informed the Complainant she was required to return to work on a full time basis but following an exchange between the parties the Complainant indicated her intention to return only on a part time basis working a three day week. In a letter dated 16th January 2017 the Respondent informed the Complainant that her failure to return to work on a full time basis may result in the termination of her employment. The Complainant responded on 20th January 2017 stating her intention to return on a three day week basis and that she must be accommodated. She was informed by return not to return to work. It was also confirmed that she would be paid for the days she was not required to attend work.

The Respondent notified the Complainant by letter dated 25th January 2017 that her employment was being terminated with effect from 27th January 2017. She was paid 8 weeks pay in lieu of notice. This letter outlined the reasons for this decision and the requirement for a full time Assistant Project Coordinator for the effective running of the services for the clients of the Respondent and that the Respondent had reached a point where they could no longer accommodate any other working arrangements other than that detailed in the contract of employment.

The Respondent argued that from 2012 they had sought to accommodate the needs of the Complainant and had done all that was possible between 2013 and 2017 to provide reasonable accommodation. Where there was a delay in securing reports thereby delaying the return to work of the Complainant, she was paid in full from September 2015 to December 2015. This was confirmed by the Complainant at the Hearing. There was also inconsistency in the Complainant’s arguments where she stated she got tired in the afternoon but would only work a three day week, including working in the afternoon while refusing to countenance working over five days, mornings only. This was rejected by the Complainant as was any suggestion moving to a different role which could be worked over three days. The Respondent also stated that during the Complainant’s absences and shorter working hours she completed a law degree and was afforded study leave by the Respondent. This was engaged in by the Complainant despite her inability to meet the commitments of her job.

The Respondent then responded in detail to the submission of the Complainant received by them on 5th February 2018. They also reference a number of decisions of the Labour Court and the High Court in support of their arguments that the Respondent had done all to accommodate the Complainant.

On the basis of the evidence, written submissions from both parties, including 21 appendices from the Respondent and 86 Appendices from the Complainant, all of which I have read I find as follows –

The Complainant was employed as Assistant Project Coordinator on a full-time 35 hour a week contract of employment, which set out her defined duties reporting to the Project Coordinator. This position was funded by the HSE. The services provided were to individuals in recovery from substance abuse. The Contract sets out that the position is subject to continued funding and the named Funder was the HSE.

The Complainant was diagnosed with an illness in 2012 which the Respondent accepts comes within the accepted protected category of “disability”.

Section 85A (1) of the Act provides as follows – “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.   There was no dispute between the Parties but that the illness of the Complainant does come within the protected category of disability within the Act and that the Respondent did have an obligation to provide “reasonable accommodation” to the Complainant. On the basis of the evidence presented to the Hearing I find that the Complainant has met the burden of proof as set down under Section 85A of the Act. The Burden of Proof now shift to the Respondent to prove the contrary.  

Section 16 of the Employment Equality Act, 1998, as amended, provides as follows – “(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual – (a) will not undertake (or as the case may be, continue to undertake) the duties attached to that position or will not accept (or as the case may be, continue to accept) the conditions under which those duties are, or may be required to be performed, or (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed”.

Section 16(3) of the Act provides as follows – “(a) For the purposes of this section, a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if, the person would be so fully competent and capable on reasonable accommodation (in this section referred to as “appropriate measures”) being provided by the person’s employer. (b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability – (i) To have access to employment (ii) to participate and advance in employment (iii) To undergo training unless the measures would impose a disproportionate burden on the employer. (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of – (i) The financial and other costs involved (ii) The scale and financial resources of the employer’s business and (iii) The possibility of obtaining public funding or other assistance”.

Section 16 (4) of the Act defines “appropriate measures” as follows – “(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned (b) without prejudice to the generality of paragraph (a), includes the adaption of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that a person might ordinarily or reasonably provide for himself or herself”.

The evidence was that the Complainant was diagnosed with an illness in 2012. In December 2012 the Complainant requested and was granted a temporary reduction in her hours to a four day working week for a six month period. This necessitated some of her duties being carried out by CE staff and especially the Project Coordinator. This arrangement was extended for a further six months to January 2014 and again up to April 2014 but it was indicated to the Complainant at that time that a shorter working week did not meet their operational needs. The Complainant worked the 4 day week up to April 2014.

In May 2014 the Complainant requested in a letter dated 8th May 2014, and was facilitated, with a 31 hour week worked over 5 days as she stated “I get very tired in the afternoon”. In December 2014 the Complainant requested she work from home 2 days and 3 days on site. The Respondent, following medical advice provided, did facilitate a 3 day working week but informed her that it was not possible to facilitate a 2day working from home due to the nature of the employment. This was being accommodated by increasing the workload of other employees especially the Project Coordinator. This was not acceptable to the Complainant and she was absent on certified sick leave up to September 2015 when she stated she would be able to resume work but only on a three day week basis.

The Respondent sought an independent medical opinion in August 2015 who recommended that the Complainant should be permitted to return to work on a three day week basis but only if it was operationally feasible. The Occupational Physician in a letter dated 2nd December 2015 in which he stated as follows – “I gather …that her Employer sought an opinion whether she would be fit to work 4 hours per day over 5 days. Having reviewed my report and given the underlying medical condition and its stated impact on work tolerance, I would support this measure as it would be in keeping with the intention of allowing (the Complainant) time to rest and recuperate during her working week…”The Complainant did not return to work in September 2015 but there was a series of meeting between the Parties and it was agreed to engage an Occupational/Ergonomic Assessor and this assessment took place between 15th October 2015 and 16th November 2015 and recommended the provision of certain accommodations for the Complainant. She was offered a return to work over 5 days but only working 21 hours over 5 mornings and paid for 25 hours. This proposal was unacceptable to the Complainant who would only agree to returning to work on a three day basis.

The Respondent engaged another independent Advisor in January 2016 who recommended that the Complainant return to work on a three day week basis pending a further investigation of the Complainant’s ability to return to work for 21-25 hours over 5 days. The Complainant did return to work on a three day week basis in January 2016 again with her work being taken on by other employees in addition to their own contracted work.

The Complainant was on sick leave from July 2016 to January 2017 when she sought to return to work again only on a three day week basis.

There was no evidence presented by the Complainant that she was not capable of the full duties of her contract of employment. The Complainant argued different issues on different occasions namely that she needed to work reduced hours as she suffered fatigue in the afternoons and this was facilitated. The Complainant then argued that she needed to work only 3 days a week even though this necessitated her working full days. The Complainant would not countenance, even on a trial basis, working a five day week but only working 21 – 25 hours on a trial basis even though the Occupational Physician stated in his letter dated 2nd December 2015, quoted above, he would support this. I also note that during this period the Complainant confirmed she commenced a 5 year law degree which she informed the Hearing was put on hold over 2013 and 2014 but that she completed her law degree in November 2016 and she also confirmed that this was completed at Night time.

I now refer to the Decision of the Irish Court of Appeal issued 31st January 2018 in the case of Nano Nagle School v Marie Daly 2018 IECA 11. This case was initially heard by an Equality Officer who held for the Respondent under Section 16(3) of the Act. The Complainant appealed to the Labour Court who held for the Complainant allowing her appeal. This was then appealed by the Respondent to the High Court and the Judge issued his Decision on 11th December 2015 holding that the Respondent had failed to demonstrate any error of law in the determination of the Labour Court. The Respondent then appealed to the Court of Appeal. The Judges considered the interpretation of Section 16 of the Act and held as follows – “The relevant obligation imposed on the school as MsDaly’s employer is imposed by s.16(3)9B0 to take “appropriate measures, where needed in a particular case, to enable a person who has a disability….to participate… in employment….unless the measures would impose a disproportionate burden on the employer”. There are however, in s.16 of the 1998 Act two limitations to the obligation on the employer to take such appropriate measures to enable a person with a disability participate in employment. The first is specified in sub-s 16(3)(b) itself namely that the measures would not impose “a disproportionate burden on the employer”. The second limitation is in s. 16(1) to the effect that nothing in the Act is to be construed as “requiring any person to …retain an individual in employment in a position….if the individual…is not (or as the case may be no longer) fully competent and available to undertake and fully capable of undertaking, the duties attached to that position having regard to the conditions under which those duties are, or may be required to be performed”. The question is how to construe that limitation on the obligation placed on the employer in a manner consistent with the obligations imposed by s.16(3)(b) to take appropriate measures, where needed, to enable a person who has a disability to participate in employment and having regard to s.16(3)(a) which provides that a person who has a disability is to be considered as fully competent to undertake, and fully capable of undertaking any duties if, the person would be so fully competent and capable on appropriate measures being provided by the person’s employer”.

I find on the basis of the evidence that between 2012 and 2017 the Respondent facilitated in a positive manner to all the requests from the Complainant to work reduced hours over four days and to work three days for specified periods while the Project Coordinator and other CE workers carried out additional work of the Complainant in addition to their own specified duties to enable the Complainant to return to full time employment. However the Complainant was not prepared to consider, even on a trial basis, the recommendation from a Specialist Consultant and the Respondent to work reduced hours, mornings only, on a 5 day week basis in circumstances where the Complainant did complete her Law Degree at night time in November 2016.      

The Complainant had also lodged a complaint alleging the Respondent treated her unlawfully by discriminating against her on grounds of her disability in relation to “Conditions of Employment” and by “Victimising her”.

Section 8 (6) of the Act deals with discrimination in relation to conditions of employment as follows – “Without prejudice to the generality of subsection (1)m an employer shall be taken to discriminate against an employee….in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee…..(a) the same terms of employment (other than remuneration and pension rights). (b) the same working conditions, and (c) the same treatment in relation to overtime, shift work, short time, transfers, lay offs, redundancies, dismissals and disciplinary measures as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different”. There was no evidence presented at the Hearing by the Complainant or her Representative in relation to this complaint.

Victimisation.

Section 74(2) of the Act provides as follows – “ For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to – (a) a complaint of discrimination made by the employee to the employer (b) anyproceedings by a complainant……….”. There was no evidence presented to the Hearing on 8th February 2018 that the Complainant had made a complaint of discrimination to her Employer or that she was involved in any proceedings against her Employer. The dismissal was effective from 24th March 2017 and the Complainant lodged her complaint to the WRC on 27th March 2017.

In accordance with Section 79 (6) of the Act and my findings above, I declare the complaint of discrimination on the grounds of disability is not well founded.

In accordance with Section 79(6) of the Act I declare the complaints of discrimination in relation to terms and conditions of Employment fail for lack of prosecution.

In accordance with Section 79(6) of the Act I declare the complaint of victimisation fails for lack of prosecution.

Complaint in relation to Section 16 – Not well founded.

Complaint in relation to Section 8(6) Conditions of Employment and Section 74(2) both fail for lack of prosecution