EDA1818

The Adjudication Officer found that pursuant to section 79(6) of the Act, that the Respondent had provided appropriate measures and therefore found against the Complainant.

Facts

The material primary facts of this case are not in dispute and can be summarised as follows;

The Complainant has been employed as a production operator by the Respondent since June 2009. She was certified sick with a gynaecological condition which required surgery in July 2013 and diagnosed with cancer in September 2013.

A return to work date of 13^thOctober 2014 was agreed. The Complainant was certified fit to return to work by her GP. No qualifications on her return to work were set down by her GP.

On her return to work the Complainant sought to be facilitated with a “sit-down-job”.

Due to the nature of the work there are only limited opportunities to facilitate “sit down jobs”.

The Respondent referred the Complainant to the Company doctor in November 2014 in relation to a number of issues including her fitness to carry out a standing role. The Doctor certified her medically fit to remain in work in a standing role. A number of meetings involving the Respondent and the Complainants Union took place where she continued amongst other things to raise the issue of a “sitting role” At a meeting on 24^thApril 2015 the Respondent indicated that it believed it had more than fulfilled its duty in facilitating the Complainant’s phased return to work and that she had been deemed medically fit to carry out the standing role by her own GP and the Company Doctor.

On 27^thMay 2015 the Respondent received a letter from a Consultant Urologist “earnestly requesting” that the Complainant be accommodated by work in a seated position rather than having to stand for prolonged periods of time.

On the 19^thNovember 2015 when a vacancy arose Ms Burke was assigned to a “sit- down job”.

Position of the Parties

The positions taken by the parties can be summarised as follows: -

The Complainant’s case

The effects of the cancer treatment meant that the Complainant required the employer to take appropriate measures to support her in the work place. The Complainant suffered from chronic pain and tiredness which could be alleviated by working in a sitting position. The provision of a “sit-down-job” or a rotation between sitting and standing was not a disproportionate burden on the employer. The Complainant does not dispute that her GP did not put any restriction on her return to work or that the Company doctor had certified her fit for a standing role. She identified a number of people who she felt had ben facilitated with sitting roles albeit on a temporary basis.

The Respondents position

The Respondent made a number of accommodations in respect of the Complainants return to work. They accommodated the Complainants request to transfer shift from evening shift to day shift. They accommodated the Complainants return to work on a phased basis in agreement with the Complainant. They re-assigned her to a different work area as she expressed concern about the area she was in. When the Complainant raised the issue of a sitting job they referred her to the company doctor who certified her fit for a standing role. There are no permanent sit-down jobs on the production floor and the company endeavours to share those that do arise in a fair manner between all employees who request same. The complainant was treated no different to other staff in terms of her request on the basis that she was certified medically fit to carry out a standing role. Following receipt of the letter from the Consultant Urologist “earnestly requesting” that the Complainant be accommodated by work in a seated position rather than having to stand for prolonged periods of time the employer facilitated that request. A temporary vacancy arose in a “sit-down job” in November 2015 the Complainant was assigned to same at that point.

The applicable law

2.— (1) In this Act, unless the context otherwise requires…

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(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,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Section 16 (3) provides: -

• • (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.

  “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;

Discussion

The Complainant complained that she was discriminated against on the disability ground in breach of the terms of Section 6(2)(g) and in contravention of Section 8 of the Act.

It is disputed by the Respondent that the Complainant had a disability as defined by the Act at the time she returned to work.
It is clear to the Court in line with the following extract from section 2 of the Act

• “and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”

Section 6(1)(g) of the Acts provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability. It is the Complainant’s case that other workers with different disabilities and without disabilities were facilitated with “sit- down -work” in circumstances where she was denied the same facilitation.

Section 16(3)(a) of the Acts in effect provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities. It is clear from the Acts as a whole that a failure to provide reasonable accommodation in accordance with this Section does not, in or of itself, constitute discrimination. Discrimination, for the purpose of the Acts, is defined by Section 6. That definition does not include any reference to a failure to fulfil the duty imposed by Section 16(3). Furthermore, there is nothing in the Acts which gives an independent cause of action for an employer’s failure to provide special treatment of facilities in accordance with that Subsection.

The general principles regarding the application of Section 16 (3) of the Acts are set out inNiamh Humphries v Westwood Fitness Club[2004] 15 E.L.R. 296 which require an employer to make abona fideand informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. It requires the employer to fully and properly assess medical evidence.
The Respondent in its submission to the Court set out a range of measures it had put in place to facilitate the Complainant’s return to work. The Respondent also set out for the Court the circumstances in which “sitting- on the job” work arose and how it sought to distribute that work in a fair manner between all parties who looked to do that work. In this case the Complainant had been medically certified as fit for a fulltime standing role in those circumstances she was treated in the same manner as other workers who sought a “sitting -on the job role”

The Court is satisfied that the Respondent imposed no detriment on the Complainant due to her disability.

In all the circumstance of this case the Court is satisfied that the Complainant was not discriminated against because of her disability by the Respondent not immediately granting her request for a “sitting -on the job” role. The Court finds that the Respondent did make reasonable accommodation in terms of the Complainant’s return to work after her illness.

Therefore, the Court finds that the Complainant is not entitled to succeed in her claim of discrimination on the disability ground and failure to make reasonable accommodation.

The Adjudicator's Decision is therefore upheld.



Signed on behalf of the Labour Court



Louise O'Donnell
LS______________________
14 March 2018Deputy Chairman



NOTE

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