EDA1838

The Adjudication Officer, in a decision dated 18^thDecember 2017 upheld the complaint and awarded the sum of €15,000 in compensation. The appeals of that decision were received by the Court on 26^thJanuary 2018.

Background

The Complainant commenced employment with the Respondent on 15^thNovember 2003 and her employment was terminated by the Respondent on 24^thOctober 2016. At the date of termination of her employment she was employed as an Assistant Manager and her salary was €35,000 approximately.

It is common case that the Complainant, at the date of termination of her employment and prior to that date, suffered from a disability within the meaning of the Act.

The termination of the Complainant’s employment followed a period of absence from the employment which commenced on 9^thJune 2014. In a letter dated 26^thSeptember 2016 the Respondent stated that the decision to terminate the employment was made “regarding your continued absence from work since 9^thJune 2014”. That letter went on to state that the Complainant had been met on 12^thSeptember 2016 and at that meeting she was still “unable to provide an indication of a date of return to work in the near future. You could also not provide any new or updated medical information / opinion regarding your illness”.

Summary Position of the Complainant

The Complainant submitted that throughout her employment she was an exemplary employee. She was certified unfit for work from 9^thJune 2014. Over the succeeding period she continued to suffer from stress and anxiety.

Over the succeeding months the Complainant was asked to attend meetings with management of the respondent which she did. She was also asked to attend the Respondent’s company doctor on 23^rdFebruary 2015. That doctor confirmed that she was unfit for work but that with continued care she should make a good recovery.

She attended a meeting with the Respondent management in March 2015 where she was asked if she was fit to return to work and she said she wasn’t.

A further series of meetings took place over the succeeding period including with the Respondent’s Regional manager, Mr JD.

Her GP sent an update to the Respondent in January 2016 stating that the Complainant suffered from a severe stress related illness and that it was not possible to predict with certainty when she would be fit to return to work.

The Complainant attended further meetings with Mr JD in January, February, April, May and June 2016.

Mr JD wrote to the Complainant in August 2016 stating that, at the June meeting, the Complainant had not provided a return to work date. The letter scheduled a meeting for 22^ndAugust and advised her to discuss the matter with her doctor and to bring any medical or other information she wished the Respondent to consider to that meeting. The letter advised the Complainant that her position would be considered at that meeting and that such consideration could lead to a decision to dismiss her.

At that meeting she supplied Mr JD with a letter advising that she had been referred to a specialist and that her return to work would depend on the outcome of that visit. Mr JD advised her that he needed a return to work date. Mr JD advised her that her contract would be terminated.

The Complainant received a further letter from Mr JD on 1^stSeptember 2016 inviting her to a further meeting on 12^thSeptember. That letter advised her to discuss the matter with her doctor before the meeting and that she should bring any medical reports or other information she wished to the meeting on the 12^th. The letter advised her that Mr JD would, at the meeting, be seeking a definitive return to work date in the near future.

The Complainant attended the meeting on 12^thSeptember and provided Mr JD with a copy of the referral letter to specialist consultant physicians and other letters in that connection. Mr JD took out the letters and read them at the meeting and then left the meeting for ten minutes. Upon his return he told her he was terminating her employment but with notice. When she asked for clarity on the issue of notice Mr JD advised her that she would receive a letter.

The Complainant received a letter on 27^thSeptember advising her that her employment was terminated, that she would receive six weeks’ notice and that the date of termination would be 24^thOctober 2016.

The Complainant submitted that at the material time she was suffering from a disability within the meaning of the Act and that she was dismissed by reason of that disability. The Respondent had concluded that the Complainant was incapable of carrying out the work for which she was employed. That conclusion was reached in the absence of impending medical advice which would address the Respondent’s request for a return to work date. In addition, the Respondent was obliged by Section 16 of the Act to make whatever reasonable accommodation might be necessary to facilitate her return to work. Any consideration of this matter could only be made upon receipt of the relevant medical advice which the Respondent did not wait to receive.

The Complainant submitted that the Respondent had asked the Complainant in February 2015 to attend their medical adviser which she did. That medical adviser had stated that she ‘would like to review her regularly’ but such a review had never been arranged.

The Complainant submitted that the Respondent made no effort to understand what if any support or other reasonable accommodation would have facilitated her to return to employment. The Respondent therefore did not discharge its responsibility to make an informed and considered decision as regards whether reasonable accommodation within the meaning of the Act would facilitate the Complainant in being capable of carrying out her duties.

The Complainant submitted that the Respondent had an obligation to fully and properly assess all medical evidence as part of their consideration of their obligation to the Appellant who was suffering from a disability within the meaning of the Act.

The Complainant submitted that in consequence of the failure of the Respondent to give proper consideration to what if any reasonable accommodation could be made to facilitate the Complainant participating in employment her dismissal on grounds of her disability was a discriminatory dismissal.

Summary position of the Respondent.

The Respondent submitted that, at the point of the decision to dismiss her, the Complainant had been absent through illness for over two years. It was clear to Mr JD that the Complainant’s condition had not improved over the two-year period. In fact, it appeared that the Complainant’s condition was worsening with additional serious and debilitating conditions emerging. Having met with the Complainant on seven occasions over the previous fourteen-month period it was clear to Mr JD in September 2016 that the Complainant continued to suffer significant anxiety when visiting and being physically present in the store. In those circumstances it appeared to the Respondent that there was no reality to the Complainant returning to work in the near future following the meeting in September 2016. The Complainant was advised in the letter of 26^thSeptember 2016 which communicated the termination of her employment to her, of her right to appeal the decision to dismiss. The Complainant chose not to appeal that decision.

The Respondent submitted that the Complainant was unfit to perform the duties for which she was employed at the date of her dismissal and for two years previously. The Respondent submitted that, having regard to the Act at Section 16 and taking account of this Court’s decision inHumphreys v Westwood Fitness Club [2004] (ELR296, 300)the Respondent had met with the Complainant at regular intervals over the period of her absence, had arranged for her to be examined by the Company Doctor for an assessment of her condition and her potential to return to work and had been furnished with regular medical certificates from the Complainant confirming that she was unfit for work as a result of her various illnesses. In those circumstances, the Respondent, referring to the decision of the Court inHumphreys v Westwood Fitness Club,submitted that there could be no doubt but that the Respondent was in “full possession of all the material facts” concerning the Complainant condition.

The Respondent submitted that it was clear to the Complainant that she had been advised that the Respondent could not hold her position open indefinitely and that, when the time came, dismissal on the ground of incapacity was being considered.

The Complainant was allowed the opportunity to influence the employer’s decision as demonstrated by the notes of meetings with her and as a result of the invitation to her to bring medical and other information to the meetings in August and September 2016 with Mr JD.

The Respondent submitted that, during the period from the date her absence commenced until her dismissal over two years later, neither the Complainant nor her doctor could give any indication when she would return to work or suggest any specific measures which, if implemented by the Respondent, would render the Complainant fit for work.

The Respondent submitted that where reasonable accommodation can be provided to an employee in order to facilitate their return to work it is the Respondent’s policy to provide that accommodation by way, for example, of a phased return to work, a return on restricted duties and the allocation of particular shifts.

The Respondent drew the Court’s attention to the Court of Appeal decision of Ryan J inNano Nagle v Marie Daly (2018) IECA 11and submitted that the Court must consider the reality of the situation rather than the process utilised by the Respondent to reach a view of the reality of the Claimant’s capacity to work at the date of dismissal.

The Law

The Act at Section 16 provides as follows

16.— (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.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a ) For the purposes of this Act 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 subsection referred to as ‘ appropriate measures ’ ) being provided by the person ’ s employer.

(b) The 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 or advance in employment, or

(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 entailed,

(ii) the scale and financial resources of the employer’ s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

‘ appropriate measures ’ , in relation to a person with a disability —

(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 adaptation 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 the person might ordinarily or reasonably provide for himself or herself;

“ employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body.

(5) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.

(6) Without prejudice to the generality of subsection (5), that subsection applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.

Discussion and conclusions

It is common case that the Complainant suffered from a disability within the meaning of the Act and that she was dismissed for reasons associated with her disability.

There is no dispute between the parties that, at the date of her dismissal, the Complainant was not, as a result of her disability, capable of returning to work. The key matter for the Court is the question of the degree to which Section 16 of the Act imposed obligations on the Respondent to make an informed decision about the likely capacity or incapacity of the Complainant to perform the work for which she was employed in the proximate future or whether, if reasonable accommodation was given to her, she would be capable of undertaking the essential duties of her position.

In the instant case the Respondent had engaged with the Complainant throughout her absence and had, in advance of meetings in August and September 2016, asked the Complainant to make available to the Respondent all relevant medical and other information. The Complainant responded to that request by supplying letters and other documentation from her doctor. On the 22^ndAugust 2016 the Complainant supplied the Respondent with a letter from her doctor dated 18^thAugust 2016. In that letter the doctor referred to the illnesses suffered by the Complainant, stated that she had improved markedly in recent time and advised that she had been referred to a specialist for an opinion as regards certain aspects of her physical condition. The doctor, in that letter, stated that ‘any potential return to work will depend on the outcome of this specialist visit’.

The Complainant, at the meeting on 12^thSeptember 2016, supplied further documentation from her doctor identifying the specialists from whom an appointment had been sought and including a copy of a letter to those specialists from the Complainant’s doctor seeking that the requested appointment be expedited.

The Court of Appeal, inNano Nagle v Marie Daly (2018) IECA 11addresses the nature of enquiry to be undertaken by an employer in discharge of their obligations under the Act at Section 16 and, in terms of considering the nature of what reasonable accommodations should be afforded to a person suffering from a disability such that they would be fully competent and capable of undertaking their essential duties. That decision is, the Court understands, under appeal but at this time it remains the law which must be applied by this Court.

Ryan J set out in that decision that

‘The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable for failing to consider the matter or for not consulting. It is not a matter of review of process but of practical compliance. If reasonable adjustments cannot be made, as objectively evaluated the fact that the process of decision is flawed does not avail the employee.’

The Court, in consequence of this decision, must, in order to determine whether the Respondent discharged adequately its responsibilities under the Act at Section 16, give consideration to the efforts made by the Respondent to objectively evaluate whether reasonable adjustments to the work arrangements of the Complainant could be made so as to render her fully capable of carrying out her duties. The Court finds that the Respondent did make efforts throughout the Complainant’s absence to be aware of her condition. The Court notes however that, notwithstanding the recommendation of the company doctor in February 2015 that the Respondent make arrangements for the company doctor to keep the Complainant under review no steps were taken by the Respondent to arrange such a process.

The Court notes also that the Respondent wrote to the Complainant on 4^thAugust and required her to attend a meeting to discuss her return to work on 22^ndAugust 2016. She was requested in that letter to bring with her to that meeting all medical reports or other information which she would want the Respondent to consider. The Court concludes that the Respondent, in making any decision as regards the future employment of the Complainant, intended to take into account those medical reports and other information related to the Complainant’s capacity to return to work.

The Complainant attended a meeting on 22^ndAugust 2017 and provided a written communication from her doctor which stated that she was progressing well in respect of aspects of her illness but that a return to work could not be determined pending a planned consultation with a specialist which had been requested of the specialist by the doctor.

That consultation with a specialist had not taken place by the date of dismissal in September. That dismissal followed a further meeting with the Respondent on 12^thSeptember 2016 at which the Complainant indicated that she could not provide a return to work date at that time. This incapacity to provide a return date was plainly connected with the earlier written advice of her doctor that a response to the Respondent’s request for a return to work date would have to await the outcome of a visit to her specialist.

The Court notes that the decision to dismiss the Complainant was stated to be because of her inability to provide a return to work date. The Court finds that the Complainant’s inability to definitively address the demand for such a date on the date of her dismissal was a function of her medical advice related to her disability as provided to the Respondent in writing.

In all of the circumstances, the Court finds that, in the absence of an impending specialist report which would allow a response from the Complainant’s doctor to the Respondent’s request for a return to work date, the Respondent was, on the date the decision was taken to dismiss, not in a position to objectively evaluate the degree to which appropriate adjustments could be made to her working arrangements so as to render her capable of participating in the employment.

The Court therefore finds that the Respondent failed to adequately discharge the duties imposed upon it by the Act at Section 16. The Court therefore finds that the Complainant was discriminated against on grounds of her disability contrary to Act.

Determination

The Court determines that the Appellant was discriminated against contrary to the Act. The appeal is allowed and the decision of the Adjudication Officer is varied. The Court awards compensation in the amount of €30,000 to the Appellant in respect of the effects of the discrimination she suffered.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
30 July 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.