ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00003969

Parties:

Complaint(s):

Date of Adjudication Hearing: 03/01/2018

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant alleges discrimination on the grounds of a disability. She alleges the last date of discrimination was on March 3rd 2016 and submitted her claim to the WRC on July 6th 2016.

Summary of Complainant’s Case:

The Complainant is employed since 2008 and in 2014 she was diagnosed with a rare autoimmune disease (Nueromyelitis Optica).

In 2014 and 2015 she attended the Company medical consultants and both reports advised she could stay at work once adjustments were put in place.

The Complainant was initially hired as a Customer Care Rep and received two promotions. Her last job was administrative based and involved no interaction with customer by phone. She had her own desk by a window and was able to work normally.

In 2015 when the need for her role disappeared she reverted to Customer Care and she was unhappy with her treatment due to her medical condition.

She attended for a Rheumatologist and they advised she would need a low traffic area, in a bright area with good lighting where she could maintain reasonable room temperature. The report stated they were concerned that going on shift would be determinantal to her health and had concerns about infection in an open working environment.

The Respondent considered the Complainants grievances but did not seek a review of the Rheumatologist report and only suggested minor changes to the work situation and did not go far enough to address her concerns. The Complainant then went on sick leave.

The Complainant received an outcome to her appeal on March 9th 2016 confirming they had reviewed the reports and that there were no roles available which would differ from her current role.

Following a meeting with an Irish Life medical consultant, their report confirmed that the Complainant was not able to return to work as a Customer Service Executive and offered suggestions around breaks, accommodation and alternate roles. The Respondent subsequently met the Complainant and discussed a number of options regarding suitable roles and the Complainant expressed concern about not being notified while on sick leave abut a number of roles that had become available while she was on sick leave.

The Complainants case is that she was discriminated against on the grounds of disability in breach of section 6 (2) of the Act where she has been treated less favourably than a person without a disability.

Summary of Respondent’s Case:

The Respondent alleged the claim was out of date.

The Respondent rejected the claim.

In June 2014 the Complainant brought her medical condition to the attention of the Respondent.

The Respondent completed an internal ergonomic review of the Complainants work environment and made a number of recommendation to the Complainants working environment.

The Complainant was sent for a medical assessment in November 2014 and it basically recommended she was fit for work and recommended the use of magnification tools and that there was not evidence to suggest that the office environment would lead to a worsening of the Complainants underlying conditions.

In June 2015 the Complainant was met and informed she would be returning to Customer Care on the same terms and conditions and the Complainant met the company again afterwards to inform them of her concerns about the work environment.

The Complainant requested a smaller department, no high traffic, bright and comfortable and not on headphones all day.

The Complainant was then sent for another medical appointment with the company doctor which said the Complainant might struggle in an environment where she is unable to take breaks while talking to customers but she was fit to return to work. The Company went back to the Doctor on a number of points and they advised that a specific location is not necessary and hot seating desk should not be an issue considering her illness subject to the usual infection controls measures.

In September 2015 the Complainant provided an update from her medical consultant. This was considered and the grievance outcome stated that the Complainant had been provided with a designated desk away from a high flow traffic area and near a bay window.

The Complainant appealed the Company decision on three grounds and basically the appeal failed.

Irish Life subsequently determined the Complainant had met its criteria for eligibility into its disability scheme.

The Respondent has been seeking to find an alternative role for the Complainant but without success and provided a list of roles that have been filled by their staff in a number of areas.

The Respondent made a number of legal submissions.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Is it settled law in discrimination cases by the Labour Court in Ann Hurley v Co. Cork VEC that a continuing alleged discrimination, the cognisable period for this aspect of a complaint (and applying to this compliant) extends up to the date of which a complaint is ongoing. Therefore, the application that the claim is out of time is refused by the Adjudicator.

There were significant medical and ergonomic report differences submitted by the parties as regards the Complainants abilities to do the work proposed by the Respondent in her new role and the type of environment (i.e. Light, away from heavy traffic, own desk, shift situation, hygiene requirements etc.) required to be provided by the Respondent for the Complainant to do the proposed new role.

The Respondent did not initiate, nor did the Complainant request, a third party independent medical and ergonomic assessment be carried out regarding what type of environment was required by the Complainant to allow her work in the Respondents employment.

The Respondent certainly seems to have engaged with the Complainant and sought to find compromises, to a degree, to accommodate the Complainants stated needs.

In the absence of a definitive third party independent medical assessment, and the very significant conflicting medical assessments provided in evidence, I am not in a position to assess the different medical reports as I am not qualified to do so.

My Decision is that the Complainants claim must fail as she did not establish a prima facia case that the Respondent failed to provide reasonable accommodation for her due to her disability. The claim fails primarily due to the significantly conflicting medical reports regarding her medical condition and the accommodations required to be made by the Respondent to facilitate her returning to work. However, while technically outside my remit, I propose the parties consider, and this suggestion is not part of my Decision and may either be agreed to or not by the parties as they so choose and failure to do so cannot be grounds for appeal of this decision, I suggest that the parties consider, within two weeks of the date of this Decision, the appointment of an agreed independent medical and ergonomics expert company to asses the claim by the Claimant and they should agree to be bound (or not) by that independent assessment regarding what accommodations are required to assist the Complainant to return to work. Agreeing to this suggestion would not prevent either party appealing this decision, should they choose to do so, within the allowed timeframe for lodging an appeal.

Dated:   9th March 2018

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