FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : AN POST (REPRESENTED BY MR CATHAL MCGREAL BL; AS INSTRUCTED BY MR PAUL CARROLL, SOLICITOR, AN POST) - AND - CLAIRE STEPHENS DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision No: DEC-E2018-005.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 25 October 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Claire Stephens against the Decision of an Adjudication Officer/Equality Officer under the Employment Equality Act, 1998 - 2011 (the Act) in her claim of discrimination on the disability ground by her employer, An Post when it failed to provide her with reasonable accommodation to allow her attend meetings with management. The Adjudication Officer/Equality Officer in Decision no DEC-E2018-005 found that the Complainant’s complaint was not well-founded.
For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Claire Stephens will be referred to as “the Complainant” and An Post will be referred to as “the Respondent”.
This appeal was heard at the same time as a number of other appeals submitted to the Court by the Complainant. Extensive submissions and documentation were submitted in the course of the appeal which the Court has summarised in this Determination.
Background
The Complainant was employed by the Respondent as a Postal Operative in the Galway Mail Centre from 11th June 2001. She worked 37 ½ hours per week on nights, over five nights per week. The Complainants employment terminated on 5thFebruary 2016 (post the claim under the Act).
On 22ndJanuary 2015 the Complainant referred a claim under the Act to the then Equality Tribunal. The Adjudication Officer/Equality Officer issued his Decision on 26thJanuary 2018, the Complainant appealed the Decision to this Court on 31stJanuary 2018.
Summary of the Complainant’s Case
The Complainant appeared before the Court as an unrepresented party. She told the Court that since 2006 she suffers from agoraphobia and gaze aversion. She alleged that the Respondent failed to provide her with reasonable accommodation for her agoraphobia to allow her attend meetings with management.
The Complainant said that she instigated legal action against the Respondent on 26th May 2014. On 20th June 2014, her GP filled out Medical Form B of the Injuries Board, for her Personal Injury claim in the High Court. In this form her GP wrote:“Injuries Sustained - Agoraphobia, Present Complaints - remains unable to go anywhere bar her place of work and for medical appointments”.
The Complainant said that in November 2014 when she was involved in disciplinary proceedings with the Respondent,where her dismissal was under consideration she requested reasonable accommodation from the Respondent for her agoraphobia. By letter dated 28th November 2014 to the Respondent she sought a disciplinary hearing to be held in the Galway Mail Centre. She said that as the CMO of the Respondent had travelled from Dublin to Galway to see her in May 2014 she expected to receive the same accommodation in November 2014. By letter dated 1stDecember 2014, the Respondent informed her that disciplinary hearings were not normally held in Operational Units, they were generally held in the GPO Dublin, however, in her case they were willing to travel to Galway, however, the meeting would be held not in the Galway Mail Centre but in the Respondent's Regional Office.
The Complainant stated that she could not attend at the Galway Regional Office due to her agoraphobia.
On 8th December 2014 the Respondent sought advice from the CMO. On 9th December 2014, the CMO informed the Respondent that"based on the information within my records, my previous assessment of her and also the knowledge that she attended an appointment in Dublin when she had the same medical condition”he confirmed that she was fit to attend in the Galway Regional Office for the disciplinary hearing. This, she said, really surprised her, as the CMO had already accommodated her by travelling to Galway to assess her in May 2014 and he had only assessed her once, that was in May 2014.
Taking on board the CMO's advice the Respondent wrote to her on 11th December 2014, advising her that the disciplinary hearing was scheduled for the 8thJanuary 2015, in their Regional Office in Galway. Then on 14th December 2014 she wrote to Ms Lillian Jones, HR Dublin, stating that for the seventh time she was asking for reasonable accommodation for her agoraphobia.
The Complainant said that she was amazed to receive a letter dated 18th December 2014 from the Respondent requesting her to provide medical evidence of her fitness to engage in the disciplinary process, even though she was not out sick at the time, (she was on paid special leave).
On 22nd December 2014, she wrote to the CMO, Dr O’Reilly, and furnished him with a Medical Form B prepared for the Injuries Board where her GP had stated that the suffered from agoraphobia and she also offered to meet with him to aid his diagnosis. She also wrote to Ms Lillian Jones, HR Dublin, on the same date, pointing out, that the CMO had a report from her GP and from Dr Sheehan along with the Injuries Board Medical Form B. she again sought the Respondent to attend the Galway Mail Centre for the disciplinary hearing.
On 5th January 2015 the CMO advised the Respondent that having reviewed the Injuries Board Medical Form B, he remained of the view that the Complainant could attend Galway Regional Office. The Complainant was baffled by this and could not understand his reasoning as her own GP was fully aware of her condition, which the CMO ignored. She surmised that he had come to this conclusion as she had attended Dr Sheehan at his offices in Dublin for a psychiatric assessment, which she said she was forced to attend by the CMO. She said that when she attended at Dr Sheehan’s office in Dublin, she had had to take a mix of tranquillers and alcohol in order to deal with her agoraphobia. Dr Sheehan diagnosed her with gaze aversion and stated that she could be construed as having a Secondary Phobic Anxiety Disorder with both social anxiety and agoraphobic features.
On 8th January 2015 Ms Jones, HR Dublin wrote advising her that an oral hearing would proceed on Thursday 29th January 2015 in the Regional Office Galway. The Complainant responded stating that she had referred a complaint under the Act to the Equality Tribunal over the Respondent’s failure to provide reasonable accommodation for her agoraphobia, in not holding the disciplinary hearing in the Galway Mail Centre.
The Complainant told the Court that on 20th January 2015, the Respondent acceded to her request to hold the disciplinary hearing at her place of work, however, she said that she only received the letter on 29th January 2015, at her disciplinary hearing.
The Complainant disregarded the Respondent’s stated reasons for not having the disciplinary hearing in her place of work. It had asserted that it was for"the benefit of the employee concerned"and in the interests of"privacy, sensitivities and confidentiality".So, in essence this requirement to have the disciplinary hearing away from the workplace was totally for her own benefit, the Complainant said that she did not give two hoots about that as she only required her agoraphobia needs to be met by the Respondent.
Summary of the Respondent’s Case
Mr Cathal McGreal, BL instructed by An Post Legal Services, on behalf of the Respondent, stated that while the Complainant was accommodated in her request for an alternative venue for her oral disciplinary hearing, he in fact submitted that the Complainant’s case cannot succeed as she had not established aprima faciecase. He said that the Complainant insisted, contrary to the Respondent’s medical advice, that she had a medical condition that required that an investigative oral hearing concerning her alleged misconduct had to be held in her place of work and not at a more neutral work location as per Company policy. He maintained that no medical professional offered anything in writing to suggest that she suffered from agoraphobia which needed to be accommodated (other than the Complainant herself). Furthermore, he made the point that neither was there anything from either her trade union or her solicitor. Nevertheless, Mr McGreal contended that the Respondent had fully engaged with the Complainant on her complaint. The request for a preferred location for her disciplinary hearing was in fact granted on 20thJanuary 2015, therefore the claim for reasonable accommodation was moot.
Mr McGreal questioned whether or not the Complainant was suffering from a disability within the meaning of the Act. He said that it is difficult to discern precisely the specific illness or disability forming the background or basis of the complaint made. He said that there is no question but that the Complainant has medical difficulties however, she had not furnished the Respondent with confirmation of a diagnosis of a clinical illness.
On 1st April 2013, the Complainant wrote to Mr Madden, HR Manager stating that she was suicidal. Then on 8thApril 2013 she wrote another letter to the HR Manager admitting that she had lied about being suicidal, that she had never been suicidal, and had written the letter in huge anger, as she said that she had never obtained justice over a sexual harassment incident which had occurred in the workplace in 2012, when a male colleague left a pornographic postcard on her workbench. At the time the Respondent’s Occupational Health Service advised her to take some time away from work and to attend her GP’s clinic for a health review. She also had a session with the Respondent’s Occupational Advisor who advised her on her social interaction problems with her work colleagues.
Mr McGreal said that on 2ndMay 2013 the Complainant wrote and distributed 80 copies of a suicide note to all her work colleagues. This letter immediately led to a referral to the Respondent’s Occupational Support Service. Due to its concerns over the Complainant and after some considerable reluctance on the part of the Complainant, management was permitted to write to her GP. The Respondent sought details of the exact nature of the Complainant’s medical condition from the GP. It also sought advice on any relevant medical recommendations which might require further consideration.
Mr McGreal said, crucially, the report of the Complainant’s own doctor, Dr Egan GP, sought by the Respondent in mid-2013 did not mention any clinical illness. Her GP stated that she had attended her recently and she found the Complainant well. Her GP said she suffers from “anxiety”; was not depressed or suicidal but was angry and needed certain persons to be made accountable. The GP made no reference to agoraphobia, she deemed her fit to carry out her role, and had no issue concerning her return to work or reasonable accommodation.
Mr McGreal said that the Complainant does not refer to Anxiety Disorder or the particular anxiety disorder considered to be part of the family of disorders described as anxiety disorder. The Respondent’s solicitors did receive a Form B as part of the Injuries Board procedure for initiating a personal injuries action. This mentioned agoraphobia as an injury sustained at work and was received by the Respondent in late 2014. However, Mr McGreal said that any such document would naturally be contentious. Importantly, he said that Dr John Sheehan, the Consultant Psychiatrist commissioned by the Chief Medical Officer in mid-2014 to examine the Complainant, and with whom the Complainant does not appear to take particular issue, does not himself necessarily agree with such a diagnosis.
On 18thAugust 2014 Dr Sheehan in his diagnosis stated it“could be construed as secondary phobic anxiety disorder with social anxiety and agoraphobic features”.He also refers to the writing of the suicide note and said there was a voluntary component to her symptoms.
Summary of Dr Frank O’Reilly’s Evidence
Dr Frank O’ Reilly, Chief Medical Officer, gave evidence on behalf of the Respondent. In his witness statement to the Court, the witness said that he would give evidence on his assessment of the Complainant’s state of health and fitness to work, including her fitness to attend disciplinary hearings, at relevant times during her employment and his involvement in correspondence concerning the convening of a hearing which the Complainant felt should have been at a location other than the location designated by the Respondent.
Dr O’ Reilly said that he has been practicing medicine for 37 years and had been the Respondent’s Chief Medical Officer for 12 years. He is formally trained in cognitive behaviour. He is an accredited specialist in occupational health and is competent to interpret psychiatric reports.
He was asked if the Complainant had a disability within the meaning of the Act. He said “no” she did not and that he had not at any time told her that she had such a disability.
Under cross examination by the Complainant the witness was asked about his opinion of her medical condition. The Complainant mentioned the fact that she had been referred by the Respondent to Occupational Support Services; to Dr Sheehan, Consultant in Liaison Psychiatry, Department of Adult Psychiatry, UCD and to the Respondent’s nurse. She asked the witness if he disagreed with Dr Sheehan’s report on her condition which diagnosed her with social anxiety and agoraphobic features. Dr O’Reilly replied that he did not disagree with Dr Sheehan’s report of her condition, however, he said that she did not have agoraphobia, he said that agoraphobiawas a term for a generalised disorder, a pervasive disorder.
Dr O’Reilly said that he accepted that she does have some agoraphobic features that developed out of her social anxiety as demonstrated by her blushing and shyness, which she has had for many years without treatment, but she does not have agoraphobia. Dr O’Reilly said that she has features of cognitive distortion, but she does not suffer from psychosis. He said that if Dr Sheehan had any concerns he would have recommended medication/treatment but instead said that she could benefit from counselling and should return to work. Dr O’Reilly said that a lot of her thinking was very fixed which could only be treated with cognitive behaviour therapy.
Dr O’Reilly said that after the Complainant wrote and distributed her suicide note to 80 colleagues he was concerned about her mental health and contacted her GP on two occasions seeking details of the Complainant’s condition. On neither occasion did her GP mention agoraphobia, her GP told him that she was not concerned that the Complainant was suicidal and that she was currently well. Therefore, she felt that there was no need for a psychological assessment as she had no significant illness, she had no concerns about her and did not prescribe medication for her. In his witness testimony, Dr O’Reilly was quite clear that the Complainant did not have agoraphobia.
Dr O’Reilly said that in writing her suicide note to her colleagues the Complainant had no insight into the impact of her actions on her colleagues and as she was misconstruing events he was concerned about her. For that reason, he decided to send her to be psychologically assessed by Dr Sheehan. He said that he agreed with Dr Sheehan’s diagnosis that there was a voluntary element to her symptoms, he said that in his view she had another agenda, her behaviour was manipulative and voluntary.
Dr O’Reilly told the Court that the Complainant does not have a “disability” as defined by the Act. Furthermore, he confirmed that he is a qualified Occupational Physician and as such is familiar with the definition of “disability” in the Act and was satisfied that the Complainant does not come within the definition as a person with a “disability”.
The Law Applicable
In order to establish aprima faciecase of discrimination, the onus is on the Complainant to prove that she had a disability at a time material to her claim or that one was imputed to her.
The Court must decide whether the condition from which the Complainant suffered is a disability within the statutory meaning ascribed to that term. That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability contained at section 2 of the Act and the application of that definition to the facts as admitted or as found by the Court. The statutory definition provides: -
- "disability" means—
- (a) [ not relevant]
(b) [not relevant]
(c) [not relevant]
(d) [not relevant]
(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,
- (a) [ not relevant]
Findings of the Court
The Complainant stated that she suffers from agoraphobia. She relied upon the Medical Form B of the Injuries Board, for her Personal Injury claim in the High Court which was filled out by GP to prove that she suffers from agoraphobia.
The Respondent told the Court that at no point had it ever been furnished with medical certification either from the Complainant or from its own medical personnel, stating that she suffered from agoraphobia.
The Court heard evidence from Dr O’Reilly, an eminent practitioner. The Court was presented with Dr Sheehan’s report to the Respondent, an expert in the field of psychiatry. This report was not in dispute and indeed the Court notes that the Complainant relied upon it to support her case.
In his evidence to the Court, Dr O’ Reilly gave his opinion on the Complainant’s condition; on Dr Sheehan’s assessment of the Complainant’s condition and on the Complainant’s own GP’s diagnosis of her. Dr O’Reilly was emphatic that the Complainant was not suffering from agoraphobia but rather that she had some agoraphobic features which had developed out of her social anxiety as demonstrated by her blushing and shyness and noted that she was not prescribed any medication or treatment. He said that a lot of her thinking was very fixed which could only be treated with cognitive behaviour therapy.
Dr Sheehan examined the Complainant on 28thMay 2014. In his report, which is not in dispute, he states that she was vulnerable to mental health problem due to her personal history. He described the Complainant’s condition“could be construed as secondary phobic anxiety disorder with social anxiety and agoraphobic features”and that there was avoluntary component to her symptoms. His report stated that“she laughed when recounting the details of the letter she wrote to her co-workers in May 2014. Her mood was euthymic, and she expressed no suicidal ideation. She had no perceptual abnormalities and no delusional beliefs. In terms of her diagnosis, her history suggests that her initial gaze avoidance in 2005 was a conscious, voluntary behaviour.”
The Court notes that in his report Dr Sheehan stated that the Complainant had described herself as currently well and he declared her fit to return to work.
Equally, the Court notes that apart from filling out the form for the personal injuries claim, which Mr McGreal contended was contentious, the Complainant’s GP did not diagnose her with agoraphobia and reported that she found her well.
The Court notes that in a letter written by the Complainant to Ms Jones, HR on 22ndDecember 2014, at the material time relevant to the claim, in which she again sought reasonable accommodation for her agoraphobia, she relied upon Dr Sheehan’s report to substantiate her contention that she suffered from agoraphobia, a disability within the statutory meaning. This letter was forwarded by HR to Dr. O’Reilly for comment and advice.
In his email to Ms Jones, HR on 5thJanuary 2015, Dr O’Reilly informed HR that having reviewed Dr Sheehan’s report he was quite satisfied that the Complainant was fit to engage with management at the scheduled meeting at the Galway Regional Office.
The Court notes that the medical practitioners, as a matter of professional opinion were not at odds with one another and were satisfied that theComplainant did not have a disability within the statutory meaning.
On the question of whether a disability was imputed to her, the Court is satisfied that the Respondent was concerned for her and made sufficient enquires of eminent medical practitioners to establish the nature of the Complainant’s condition to determine the precise details of her condition. In such circumstances, the Court is satisfied that it did not impute any particular condition/disability to her which might have amounted to a “disability” within the meaning of the Act.
Based on the uncontroverted medical evidence tendered in this case, the Court must find that the condition from which the Complainant alleged she suffered from does not amount to a disability within the statutory meaning. Therefore, the Court finds that the Complainant has not established aprima faciecase and in circumstances where reasonable accommodation was in fact provided to her, the Court does not find that the Respondent was in breach of Section 16 of the Act. Accordingly, the claim herein must fail.
Determination
For the reasons set out above the Court determines that the Decision of the Adjudication Officer/Equality Officer is varied and substituted with this Determination. The Complainant’s appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17 December 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.