Complainant

Respondent

Anonymised Parties

A Care Assistant

A Voluntary Organisation

Representatives

Mr. Lars Asmussen, B.L., instructed by Sean Ormonde & Co. Solicitors.

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00010161-001

10/03/2017

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

CA-00012514-001

14/07/2017

The complainant claims that he was discriminated on the grounds of his disability. He alleges discriminatory treatment, victimisation and failure by the respondent to provide him with reasonable accommodation. He further alleges discriminatory dismissal and dismissal for opposing discrimination.

The respondent refutes the allegations raised, it claims that the complainant was not subjected to discriminatory treatment or victimisation. It claims that it attempted to provide him with reasonable accommodation but he was unable to carry out his duties because of his disability and unfortunately due to this fact his employment was terminated.

Given the sensitivities of the issues connected with these complaints I have decided to exercise my discretion to anonymise the identities of the parties.

The complainant is a former Care Assistant with the respondent, which provides residential and day care services to people with disabilities.

The complainant claims that there are three complaints before me for consideration, namely,

A)      The complainant was discriminated by the respondent on the grounds of his disability, in the respondent’s failure to provide him with reasonable accommodation.

B)      The complainant was victimised by the respondent for him raising complaints relating to this discrimination.

C)      The complainant was discriminatorily dismissed.

The complainant commenced employment with the respondent on 20 March 2006 as a locum relief Care Assistant. He was later promoted to the permanent position of Care Assistant. His role included all aspects of care for people with disabilities from moderate to severe. The complainant initially worked in Facility A and was subsequently transferred and worked in Facility B. The complainant claims that the respondent owns and operates an extensive network of residential properties and provides care services for people with disabilities providing them with care and support services and residential care.

The complainant claims that the respondent provides four types of services;

·         Service 1 is a service offered to people with severe to profound disabilities and it is provided across 20 residential properties. The complainant was employed in this service for a time.

·         Service 2 is a day service for people with autism provided at a central location.

·         Service 3 is a service provided for people with mild to moderate disabilities provided in 7 residential properties. The complainant worked in 2 of these properties in the past.

·         Service 4 is a service for people classed as high dependency services users.

The complainant was employed in Facility A providing care in Service 3 for the service users with less severe disabilities and lower dependency. The complainant claims because of this he was not required to provide the patients with intimate care which requires dealing with exposure to faecal matter and changing soiled nappies. This service is in contrast with other service areas where the service users with severe to profound mental and/or physical disabilities would require intimate care, namely the changing of nappies and exposure to faecal matter.

The complainant claims that in April/May 2006 he informed Dr. A, a Clinical Psychologist for the respondent, that he had a disability in the form of a “phobia of soiled nappies”.

In October 2006, the complainant’s role was changed to a temporary role as supervisor/instructor up until May and in June 2007 the complainant was made a permanent part-time care assistant. The complainant claims that in February 2012 the respondent was aware of the complainant’s phobia, however, it unilaterally redeployed the complainant to Facility B, which caters for people with severe or profound disabilities and therefore requires intimate care, the changing of nappies and thus exposure to faecal matter.

The complainant met with the Manager of Service 4, Mr X, on three occasions during 2012 to discuss his role in Facility B and here the complainant outlined the difficulties that he was experiencing providing intimate care and that it was causing him to feel sick and wretch. In September 2013, the complainant wrote to Mr. X and made a formal request for redeployment to a position that did not require intimate care and mentioned that his doctor had recommended the change as it was causing him stress. He maintains that he did not get a response to his letter and wrote again and finally a meeting was arranged for February 2014 to discuss possible options.

The complainant claims that he was offered a transfer to another location, Facility C. However, the complainant maintained that this was also a service for users with profound disabilities who require intimate care and would again expose him to faecal matter. The complainant maintains that he met various managers to discuss his possible transfer but they concluded that “all care assistant posts require intimate care” and that personal care is in all Care Assistant job’s duties. He claims that this view has been continually repeated and the possible reassigning of those duties to others and this failure to consider options is the respondent’s failure to provide him with reasonable accommodation.

The complainant attended his GP on 28 May 2014 and was diagnosed and certified as suffering from clinical depression and commenced a period of certified unpaid sick leave. On 31 July 2014, the complainant attended the respondent’s Occupational Health department, where the occupational health assessment outlines the difficulties that the complainant was reporting and states “… the only possible solution is a re-deployment to tasks which would not expose him to faecal matter. I believe that the exposure to soiled nappies can be commonplace in many of the care assistant tasks undertaken by employees in that role at the [respondent]. Hence, the difficulties in a satisfactory return to work in his current role as a care assistant”. The complainant maintains that the respondent failed to appropriately act on this recommendation.

The complainant maintains that he met with Mr. X, the HR Manager, Ms. Y, and his Trade Union representative on 23 October 2014 to discuss his return to work. The complainant said that he told the respondent’s representatives that while working in Service 3 for 5 years the clients were independent and did not require assistance going to the toilet and there were no intimate care requirements. He said that position was challenged by his Manager, Mr. X, and he was told that personal care is one of the duties of a Care Assistant and they may have difficulties finding him a role and that all Care Assistants had to perform intimate care. The complainant said that he suggested that this task could be reassigned and the respondent failed to respond or consider that as an option.

On 10 November 2014 he said he was offered and accepted a 2-week trial period placement at Facility A in Service 3, for service users with profound or severe disabilities and would require intimate care and exposure to faecal matter. The complainant said he had to conclude his placement on day two as he had to provide intimate care. He claims that this was not a suitable placement, that the staffing levels to clients were 3:1 and the possibility of reallocation of intimate care tasks should have been considered. The complainant said that an internal email to his Manager from the manager at Facility A providing an account of the trial placement, deemed that the complainant was “definitely not suitable to work in [Facility A]”. The complainant claims that the Facility chosen was done so to ensure that he would not pass the trial.

The complainant was invited to a meeting with Mr. X and HR on 24 November 2014, where the placement at Facility A and other alternative placements were discussed. He said that a separate matter alleging inappropriate telephone calls to co-workers was also raised and he was put on notice that he would have to face disciplinary action when he is certified fit to return to work. He claimed that this was an attempt by the respondent to victimise him particularly since he was already on a final written warning and any further disciplinary action would probably result in his dismissal. This was subsequently formalised by letter to the complainant on 26 November 2014.

The complainant claims that two letters were sent to the respondent by his own GP in May and June 2015 stating that “I am happy to confirm that I regard [the complainant]as being fit to resume work as a care assistant provided that his duties do not include the requirement to provide intimate care to clients that is to say the handling of faeces and soiled nappies …. I am satisfied that he will now be fit to function in all other aspects of his duties...”. On 9 October 2015 the complainant’s Trade Union Official wrote to the respondent seeking a return to work and agreement to attend the respondent’s Occupational Health Doctor, which he attended on 15 October 2015. The report of his assessment states that he would be “fit to return to work” in his capacity if a position is available that “would not expose him to faecal matter in nappies” and that the respondent “explore the options/availability of redeployment”.

On 10 November 2015 the complainant claims that Mr. X wrote to him and said that his post remains open for him, and that all Care Assistants must be able to support individuals with intimate care and that they do not have any “vacant posts which do not require intimate care for the people we support”. The complainant claims that this shows that the respondent was not taking seriously its obligation to provide reasonable accommodation. The complainant said he met with the respondent on 12 November 2015 who suggested a temporary redeployment to Service 2, a service for people with autism and profound ranges of disabilities requiring intimate care. The complainant said that he reluctantly agreed to take on the offer but he suffered a breakdown of his mental health and made an attempt to take his own life. He claims that he spoke to the respondent and outlined that “he couldn’t deal with the prospect of having to deal with nappies” and his doctor would not sign him fit for work.

On 19 February 2016 the complainant said that he attended an Occupational Health appointment for assessment and the complainant again maintains that the Occupational Health report from that assessment was that his one main issue is to the exposure to faecal matter and that he would return to work were he to be redeployed to other tasks. He claims that the respondent failed to appropriately act on same. By letter 23 February 2016 the respondent states that Mr. X wrote to HR to report that there were at least 3 service users in Facility B who would require intimate care and as such the complainant could not be deployed there without being exposed to his stressor.

By letter dated 1 March 2016 Mr. X wrote to the complainant stating that the respondent had offered him a position in Facility A, Facility C and in Service 2 but that he had deemed same as inappropriate. The letter said that it had tried to provide reasonable accommodation to him but it was very difficult as he could not return to his “full role as a Care Assistant”. It also invited him into a meeting to “consider your long term absence and the options open to both parties”. The complainant was of the view that this shows that the respondent was only considering him returning to his “full role” and not looking at other solutions like reallocating tasks to other employees. The meeting took place on 7 April where both parties discussed the offers that where open to the complainant’s return to work. The complainant sought to return to work in Service 3, where he had worked before and claims that there was no one within the service that required intimate care, whereas the respondent held the view that there was no such place within its services where there was no need for intimate care. The complainant noted that the respondent offered the complainant the option to come back on a phased based, on reduced hours but all service users had intimate care needs and it was an integral part of the Care Assistant role.

The complainant said that his medical report from the Occupational Health Company Doctor on 11 August 2016 again identified the complainant’s work-related stress and his unfitness to return to work which was caused by one key task and if that task could be redeployed he could return to work. The complainant said that he was advised by his Trade Union official that the respondent had indicated to him that there was no prospect of him returning to work and to apply for early retirement. The complainant’s Consultant Psychiatrist, by medial report dated 7 October 2016, stated that “… [the complainant] suffers with a specific phobia related to faeces/faecal matter. While having suffered with other mood and anxiety related symptoms they have responded well to both pharmacological and psychological treatment. His phobic difficulty remains unchanged. Exposure to faecal matter has in the past invoked extreme physical reaction with [the complainant] including gastrointestinal disturbance, diaphoresis (sweating) and symptoms consistent with panic attacks. While [the complainant] can function well in other domains clearly if his post continues to involve exposure to faecal matter (and it would appear to me that any post involving intimate care of adults would do so) then I am of the strong opinion that he is incapable of carrying out the duties associated with such a post due to his mental health difficulty (specific phobia) … It is chronic and longstanding in nature …”

The complainant claims that he noticed over the course of 2016 vacancies for part-time positions in facilities ran by the respondent. He claims that two of these positions would be to work with people with mild to moderate disabilities and, in his opinion, would not require him to provide intimate care. The complainant said that he contacted the respondent and to his shock and distress he was told he would have to apply for these posts as they were only available via open competition. The complainant said that he engaged his solicitor to request for a solution to be found and to draw attention to the fact that he was not offered the part-time posts in the facilities as were advertised. The respondent replied on the 7 February 2017 outlining that it was in the process of progressing a claim for early retirement on the ground of permanent infirmity at the time and was of the opinion that there were no Care Assistant posts that did not require an element of intimate care. The complainant said that the respondent’s reply demonstrates that it was not going to consider whether an existing role could be tailored and the distinct task of intimate care reallocated to a different employee, in order to accommodate the complainant.

The complainant claims that he submitted his form to the Workplace Relations Commission on 28 February 2017 and re-submitted it on 10 March 2017. The complainant claims that the respondent’s attention would have been drawn to the complaints in mid-March 2017.   The complainant claims that following that the respondent, by letter dated 27 March 2017, wrote to the complainant and highlighted that it had offered him alternative location but he found none of them to be suitable and that “… we wish to advise you again that your employment with [the respondent] is at risk”. The complainant said following an exchange of letters he was advised that “[the respondent] have not been furnished with any medical evidence as requested, to show that there has been an improvement in your medical prognosis. [the respondent] are therefore left with no option but to terminate your contract of employment on grounds of incapacity…”. The complainant said that he was shocked and distressed at this sudden dismissal and maintains that due to the close proximity of him filing his complaint and dismissal he felt certain that this was an attempt to penalise him for raising his complaint, which amounts to victimisation. The complainant further claims that the respondent mischaracterisation of the complainant medical report that it relies on to dismiss him amounts to discriminatory dismissal. The complainant appealed this decision but the decision was upheld and his appeal failed.

Legal Submissions

The complainant claims that the definition of a disability has been interpreted in an extremely broad and encompassing manner. Workplace stress was deemed a disability in Mr. O v. A Named Company DEC-E2004-052. The complainant claims that he suffered a wide range of disabilities while working with the respondent in the form of stress and anxiety and a phobia to faecal matter. The complainant claims that the respondent was at all times aware of his disability and this has been demonstrated in all the meetings, correspondence and medical reports opened in evidence.

The complainant claims that Section 16 of the Employment Equality Acts deals with the obligations placed on employers in relation to reasonable accommodation in particular Section 16(3). He claims that an employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities, which would make them fully competent to undertake their duties. The complainant claims that both the Labour Court and Equality Tribunal consistently outline that in order to provide reasonable accommodation the employer will have to consider a number of things from adjusting the employee’s attendance hours, relieving him of certain tasks and distributing to others, to altering the work environment etc., which might enable   the employee carry out his employment which he might not otherwise be able to perform. It has been established that the employer must be in possession of all material information of the employee before making a decision which might be to the employee’s detriment, Humpheries v. Westwood Fitness Club [2004] E.R.L. 296. Thecomplainant also cited Kennedy v. Stresslite Tanks Limited DEC-E2009-078 where the employee should participate in the process and Ms X v. A Nursing Home DEC-E2010-090 in relation to the “process oriented approach” and A Government Department v. A Worker ADE0516 where full details of an employee’s disability are required and to be proactive in its approach. He also claims that the respondent failed to carry out a full assessment of his needs, and failed to return him to work akin to the findings in Mr A v. A Government Department EDA061.

In relation to the actual analysis of the job the complainant relies on Mr. O v. Industrial Waste Management Company [2014] 25 ELR 106 where the Equality Officer was critical of the respondent’s rejection of alternative suggestions and not engaging with the medical experts to see if the solutions were suitable. He also cited the Nano Nagle School v. Daly [2015] IEHC 785 case in the High Court in relation to the importance that an employer must place in engaging with the employee on the appropriate measures to facilitate a return to work.

The complainant said that the respondent failed to comply with the obligations despite no less than seven medical reports from two doctors stating that he was fit to return to work except for one distinct task. Suitable alternatives were continually presented by the complainant but were never considered by the respondent and accordingly this amounts to failure to provide him with reasonable accommodation.

In relation to the claim to victimisation the complainant claims that Section 74 of the Employment Equality Acts provides for the definition of victimisation under the act. He claims that he was invited to a meeting in November 2014, purporting to discuss his return to work, and he was told he would be subjected to disciplinary proceedings for a separate set of events at this meeting. He also claims that just two weeks after lodging his complaint for discrimination to the WRC he was dismissed. He claims that both of these instances demonstrate that he was subjected to victimisation that falls within the definition of the Acts.

In relation to discriminatory dismissal the complainant claims that the respondent relies upon Section 16(1) of the Acts where it demonstrates that the employee is incompetent of undertaking its duties whereas Section 16(3), as mentioned above, places an obligation to provide reasonable accommodation on the employer when it will facilitate the employees return to work. The complainant maintains that any “knee jerk reactions” or failure to follow the procedural steps set out in Section 16(3) will render the dismissal of an employee as in breach of the Acts. The complainant relies on the decisions in Chacon Navos (C13-/05) [2006] ECR I-0667 from the ECJ to support that an employee cannot be dismissed on the account of their disability should he/she be deemed competent to perform the essential functions of the job. He also relies on the Humphery’s decision (as above) and the Vincent Kavanagh v Aviance DEC-2007-039 in relation to same.

The respondent is a voluntary, not for profit organisation that provides a range of day and residential services to people with intellectual disabilities. It employs over 500 people and has some 40 locations within the region where the complainant was employed. The respondent agrees that the complainant was employed as a Care Assistant from March 2006 to June 2017. The respondent claims that he was working at Facility A, however following an incident and after disciplinary proceedings that he was involved in he was transferred to Facility B. The respondent claims that the complainant commenced sick leave in May 2014 and was eventually dismissed in June 2017, over three years after he initially commenced sick leave.

The respondent said that the complainant alleges that he was discriminated on the grounds of disability. That he is alleging discriminatory treatment in relation to victimisation, failure to provide him with reasonable accommodation, discriminatory dismissal and dismissal for opposing discrimination.

The respondent said that on 13 February 2012 the complainant was transferred from Facility A to Facility B, which provides residential services to adults with intellectual disabilities who would require significant supports from staff due to their needs. The complainant met with Mr X - Area Manager for the area - on 24 May 2012, three months after starting in the home. During this meeting the complainant referred to some difficulties in getting used to the level of ability of some of the people in the unit. In that meeting the respondent claims that the complainant acknowledged how well he was getting on with the rest of the team and Mr. X gave some advice on how to manage some of the issues he was encountering. Mr. X also told the complainant of his entitlement to access the employee assistance programme.

On 30 August 2012, the respondent claims that the complainant met with Mr. X again. During this meeting the complainant acknowledged that things were going well for him in Facility B and that the team was “very supportive of him and very understanding” regarding his difficulties dealing with people with bowel incontinence. Mr. X had told him “[complainant] understands however that this is part of his job”. Mr. X had previously given him some suggestions on how to manage these difficulties which the complainant said he found to be of help. The complainant had attended external counselling on three occasions to help him with the difficulties he was experiencing and the Occupational Health Nurse had recommended an additional three sessions. In order to support the complainant, the Services had agreed to pay for these extra counselling sessions. On 15 November 2012, they met again and at this meeting the complainant expressed that he “is getting on well in [Facility ‘B’]”. He also said that he was still having some difficulties regarding the personal care of people living in that home. He did say that the recommendations made by Mr. X previously had helped him deal with this problem. Mr. X told him “that the role of Care Assistant is usually associated with duties reflective of people who have high support needs and [the complainant] will always therefore be required to respond to those needs despite any issues he may have referred to.”

By letter dated 27 September 2013 Mr. X received a redeployment request from the complainant. In the letter, he stated the reason for the request was due to the intimate care his role requires him to provide. He said that it was his ‘doctor’s recommendation’ that he is redeployed. However, there was no letter produced from the complainant’s doctor and nothing was ever received. A follow up letter was sent dated 21 January 2014 and Mr. X met with him on 13 February 2014. During this meeting Mr X advised him that “I have on previous occasions informed [the complainant] that in most areas of our Services, if not all areas, he will at some stage need to assist with intimate hygiene of a toileting nature with many individuals, whether it may be those who may regularly require same.” It was put to him that a transfer to another area, Facility C, could be offered to him. He was advised that while the needs of those individuals were behavioural in nature most of time, there were two individuals who were in wheelchairs with one of them needing to “have intimate personal care needs attended to by staff.”

Following a one-day induction of Facility C the complainant declined the transfer to that residence. Mr. X advised HR that while the complainant “enjoys working with people who have behaviours that challenge”, he felt “that the level of intimate care required there is also high, compared to Service 2. For this reason, he will not take up the offer of the transfer … to [Facility C]”. On 29 April 2014 Mr. X wrote to the complainant, where he summarised his understanding of events and that his request for redeployment was discussed at a manager’s meeting. However, the complainant was told that “all Care Assistant posts within any of their services, can involve intimate care procedures”. The letter concluded “[the respondent] feels that they have currently exhausted all possibilities regarding your request for redeployment based on your reasons for same, and are not in a position to advance your request any further.” On 28 May 2014 the complainant commenced sick leave due to occupational related stress.

On 31 July the complainant was reviewed by the Company Doctor and his report expressed his opinion that “I do not know of any particular medical intervention that would result in a complete resolution to the physical reaction”. He continued: “The only possible solution is a re-deployment to tasks which would not expose him to faecal matter. I believe that the exposure to soiled nappies can be common place in many of the care assistant tasks undertaken by employees in that role at the [respondent]. Hence, the difficulty in a satisfactory return to work in his current role as a care assistant.”

The respondent said that on 4 September 2014 the HR Manager wrote to the complainant and provided him with a copy of the medical report and requested he attend a meeting involving Mr. X on 12 September 2014. He was reminded of his entitlement to access the employee assistance programme; the meeting was rescheduled to 10 October 2014 as the complainant did not turn up for the meeting as planned; it was rescheduled then for 23 October 2014. At this meeting the complainant was represented by his Trade Union, Mr. X and Ms. Y were also present. A review of what had happened to date as well as some possible options to try to resolve this issue were discussed. It was agreed to explore alternative Care Assistant posts and reconvene on 24 November 2014. A copy of the notes of the meeting as well as a reminder of the complainant’s entitlement to access the employee assistance programme were sent to him on 13 November 2014.

The respondent said in an effort to try to facilitate the complainant’s return to work he was offered a trial in Facility A on 10 and 11 November 2014. Unfortunately, the complainant turned this redeployment down as he felt that the level of intimate care and possible exposure to faecal incontinence was, in his opinion, quite high. As agreed all parties met on 24 November 2014. During this meeting Ms. Y reminded the complainant of the alternative transfer options that he had been offered. At this stage an issue over inappropriate calls and texts to staff in one of the residential homes was also discussed with him and how this would have to come to an immediate end. The respondent said that the complainant acknowledged that he was availing of the services of the employee assistance programme. Mr. X gave a brief account of the telephone call he received from the complainant’s doctor and updated him on what the service had been doing to accommodate him. It was agreed to meet again on 8 January 2015.

The respondent said that the meeting that had been scheduled for 8 January 2015 was cancelled at the complainant’s request. A further meeting scheduled for 28 April 2015 was also cancelled at the request of the complainant’s Trade Union Representative. A letter was received by Ms. Y from the complainant’s doctor dated 26 May 2015. In this letter it stated that the complainant was fit to return to work “provided that his duties do not include the requirement to provide intimate care to clients that is to say the handling of faeces and soiled nappies”. On 3 June Ms. Y wrote to the complainant to arrange a meeting for 16 June 2015 “to discuss your long-term sickness absence and facilitate your return to work”. This meeting was cancelled due to the unavailability of the complainant’s representative. A further meeting scheduled for 18 September 2015 was also cancelled due to the unavailability of the complainant’s representative.

The respondent said that Ms. Y received a letter from the complainant’s representative dated 9 October 2015 to say that the complainant was fit to return to work and should be facilitated with redeployment. The complainant attended the Company Doctor for review on 15 October 2015. In his report the company doctor states that the complainant is fit to return to work in a capacity “that would not expose him to faecal matter in nappies” and that the service “should explore the option/availability of redeployment to facilitate a return to work for him”. On 10 November Ms. Y wrote to the complainant’s Trade Union Official to remind him that two alternative posts within the service which, following a trial in both, had been declined by the complainant and she stated that “The stressor identified is an essential and core duty of all Care Assistant posts in the Services. Without exception, Care Assistants must be able to support individuals with intimate care if and when required.” She went on to say that “unfortunately we do not have any Care Assistant posts which do not require intimate care for the people we support”. The Trade Union Official was reminded that the Service had kept the complainant’s position open since he commenced sick leave in May 2014 and “that we cannot hold this post open indefinitely”.

The respondent claimed that a meeting took place on 12 November 2015 were the complainant and his representative met with Mr. X and Ms. Y. It was agreed at this meeting that a rehabilitation plan would be put in place to facilitate the complainant’s return to work following a long period of sick leave. The aim of the rehabilitation plan was to get him “back to your permanent part time post of care assistant in Facility B”. This would be done by way of the complainant working in a temporary Care Assistant role for a period of four to six weeks in Service 2, working 30 hours per week. It was also agreed at this meeting that Mr. X would “…meet the Facility B team to arrange how the duty of dealing with soiled nappies of the people we support can be accommodated by the team and not by you.” The respondent claims that the complainant was also again informed that should the issue of inappropriate texts reoccur that this would be treated as serious misconduct and dealt with in accordance with the disciplinary procedure.

The respondent said that the complainant rang the Regional Services Manager on 17 November (five days after the meeting). In this call the complainant informed the Regional Services Manager that his doctor would not sign him as being fit to return to work. He told said that he was feeling negative at the prospect of having to deal with nappies. The Regional Services Manager remined the complainant that this matter had been addressed and that alternative arrangements would be in place. The respondent said that the complainant said that “sometimes he would be on his own in the house”. The Regional Services Manager advised the complainant that the temporary position in Service 2 “was just for the next 4/6 weeks” and that she “could not keep it open for him”.

The respondent stated that on 26 January 2016 the complainant was requested to attend the Company Doctor for review on 11 February 2016, which was cancelled by the complainant and finally took place on 19 February 2016. The company doctor reported that “[the complainant] advised me that he was not aware of the sanctioned facilitation to avoid his exposure to his stressor at work” … “The prognosis for [the complainant] to return to work in a satisfactory capacity, even in the absence of his stressor, is in my opinion very guarded given his prolonged absence from the workplace.”

The respondent stated that on 1 March 2016 Mr. X wrote to the complainant, a copy of the last medical report from the Company Doctor was included with this letter. Mr. X reminded the complainant that, “We have tried to accommodate you and offered you two posts, one in [X] and one in [Facility A], which you deemed unsuitable. You were also offered a temporary Care Assistant post in [Service 2] for six weeks to rehabilitate you back to work, which you accepted at the meeting on 12 November 2015 and subsequently declined in a telephone call to the Regional Services Manager on 17 November 2015.” … “We have tried to reasonably accommodate you but this is very difficult as you cannot return to your full role as Care Assistant. We invite you to make a submission on how specifically you think that you can be accommodated in your care assistant role.” … “as you are out on long term absence since 28 May 2014 and as previously discussed at our meetings, the Services cannot keep your contract open indefinitely and your job is at risk”. The complainant was invited to a meeting on 16 March 2016. However, on 15 March 2016 an email was received from the complainant’s doctor to say that he was not fit to attend the meeting the following day but would be fit in two weeks.

The respondent said that a meeting took place on 7 April 2016 where the complainant, his Trade Union Official, Mr. X and Ms. Y were in attendance. A suggestion was made regarding the complainant working in the day service but the respondent maintains that the care needs would be greater in this part of the service. It was again highlighted that, in terms of reasonable accommodation, the service could look at a phased return to work, reduced hours on a phased basis but “people we support have medical and care needs including intimate care and this is part of everyone’s duty”. The respondent said that the complainant was again advised that the service could not keep his post open indefinitely.

The respondent said that it was notified by letter dated 5 May 2016 that the issue had been referred to the Workplace Relations Commission and it noted that the reason given was “failure of [the respondent] to accommodate [the complainant] return to work”. The complainant attended a review by Company Doctor on 11 August 2016 where the Company Doctor held the opinion that “I believe that [the complainant] would be fit to return to work where he would not be exposed to his stressor at work”.

The respondent said that at this point following a meeting that the complainant had decided to peruse an application to retire on the grounds of permanent infirmity. In a letter to the respondent the complainant enclosed a copy of a report from his own Consultant Psychiatrist dated 7 October 2016 where it was stated that “[the complainant] suffers with a specific phobia related to faeces/faecal matter. While having suffered with other mood and anxiety related symptoms these have responded well to both pharmacological and psychological treatment. His phobic difficulty remains unchanged. Exposure to faecal matter has in the past invoked extreme physical reactions with [the complainant] including gastrointestinal disturbance, diaphoresis (sweating) and symptoms consistent with panic attacks. While [the complainant] can function well in other domains clearly if his post continues to involve exposure to faecal matter (and it would appear to me that any post involving intimate care of adult would do so), then I am of the strong opinion that he is incapable of carrying out the duties associated with such post due to his mental health difficulty (specific phobia). This difficulty is unlikely to change at any stage in the future as it is chronic and longstanding in nature and has not improved with pharmacological and non- pharmacological interventions thus far.”

On 15 December 2016 Ms. Y said that she received a letter from the complainant’s solicitors stating the complainant’s decision not to proceed with his application for retirement and requesting a redeployment to “… [Service 3] or to some similar low dependency service” in order to “accommodate our client’s disability and allow him to perform his role as a care giver without the risk of exacerbating his phobia”.

The respondent said that by letter dated 7 February 2017, Ms. Y wrote to the complainant’s solicitors and said that his application for early retirement had been cancelled as per their letter of 15 December 2016. She referred to the complainant’s Consultant Psychiatrist’s recent prognosis and asked if there had been an improvement in the complainant’s condition as the complainant’s solicitors was suggesting he was fit to return to work. She also advised that she had looked into the request in relation to Service 3 and there were no current vacancies there.

The respondent said that on 27 March 2017 Ms. Y wrote to the complainant and referred to the duration of his absence from work as well as the reports from the various doctors he was attending. She concluded the letter with “Taking the above into account we wish to advise you once again that your employment with the [the respondent] is at risk. If you have any further information you wish to bring to our attention we would ask that you do so by Friday 7 April 2017.” The responded said in reply she received a letter that the complainant “has not been properly consulted in relation to alternatives and is not in a position to put the matter any further save to say that he believes and it is his doctor’s position that by removing his exposure to faecal matter his return to work is certainly viable.” On 28 April 2017 Ms. Y wrote to the complainant to advise him that, following a review of this case, the decision had been taken to terminate his contract of employment with effect from 8 June 2017 on the grounds of incapacity. He was advised of his entitlement to appeal this decision, which he appealed. An appeal into the decision to terminate his contract of employment took place on 12 June 2017 by an external HR Consultant.

The appeal was rejected and the external HR Consultant found that “It is my view that the organisation made several genuine attempts to successfully transfer [the complainant] so as to manage his difficulty in so far as it could, bearing in mind that they have consistently asserted that there is no service wherein [the complainant] might not be exposed to his stressor, which remains their position today. Their decision to terminate his employment after three years of sickness-related absence, with little or no prospect of a change in his underlying condition, was in my view reasonable and proportionate. The procedures followed throughout the comprehensive but lengthy process were fair, in that [the complainant] was invited to meetings, especially those in the year prior to his termination, the purpose of the meetings, his right to be accompanied, and the potential outcome of the meetings were made clear. Termination of his contract on grounds of incapacity did not breach his employment rights in my opinion. No evidence that his statutory and constitutional rights were infringed, as alleged in his letter of appeal, was submitted at the hearing.”

Legal Submissions

The respondent claims that it has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It claims that in Mary Margetts v Graham Anthony & Company Limited [EDA 038; 7 August 2003] the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court. It claims that the complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The respondent claims that the fact of a termination of employment is not in dispute. The complainant was dismissed in line with Section 6(4) of the Unfair Dismissals Act 1977 which states that: “the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following … the capability … of the employee for performing work of the kind which he was employed by the employer to do”. In this matter the complainant was afforded a significant period from when he initially went on sick leave to when his employment was terminated. While it was a regrettable decision for the respondent to take, the time provided to the complainant over thirty-six months, was very considerable.

The respondent claims that not only was the complainant afforded considerable time to get well and be able to return to work, he was given ample opportunity to transfer to different areas, rehabilitate back to the workforce when he had been on sick leave for a significant period of time and even return to a residence where his team members would deal with any intimate care involving faecal matter. It claims that on each and every occasion when these offers were put to him they were declined or did not work out.

The respondent claims that following a meeting with the complainant, a staff representative, his Trade Union officials, Mr. X and Ms. Y on 12 November 2015, Mr. X wrote to him and outlined the agreed plan following this meeting: “You have accepted the offer of a temporary care assistant post 30 hours per week in [Service 2] for a period of 4-6 weeks commencing the week beginning 16 November 2015, actual start date to be agreed with the Regional Services Manager. The aim of rehabilitation is to get you back to your permanent part time post of care assistant in [Facility B]. Following this rehabilitation period, you will return to your substantive post of 54 hours per fortnight in [Facility B]. I will meet the [Service 2] team to arrange how the duty of dealing with soiled nappies of the people we support can be accommodated by the team and not by you. You will still be expected to provide all intimate care duties in accordance with your job description.”

The respondent said that the reason the complainant gave to the Regional Services Manager for declining the offer of working in a house where his team members would manage the aspects of dealing with soiled nappies that caused him concern was that “sometimes he would be on his own in the house”. This one point alone shows that the complainant was no longer able to carry out the role for which he was employed to do and that no amount of support would resolve this issue. It also shows that the complainant himself acknowledged that he could no longer do his job. The alternative would be a person with an intellectual disability who, if alone in the home or out on a social event with the complainant, being left in a very undignified condition in the event of soiling themselves while waiting for another member of staff to come to their assistance. In such a case, the respondent would fail in its duty of care towards these individuals.

The respondent said that it is a service provider to people with intellectual disabilities. The people who avail of these services are more prone to discrimination than most others. As such the respondent said it would not entertain or condone any discrimination against anyone whether they are an individual supported by the Services or an employee. The respondent said that it currently employs a number people with known disabilities.

The respondent said that Employment Equality Acts 1998 to 2015 state the need for the employer to make reasonable accommodation to support a person with a disability. It claims that by offering several transfers and removal, as best as possible, the issue of most concern to the complainant was more than reasonable. It said not only was the complainant given considerable time to get well, he was also reviewed by the Company Doctor on a number of occasions and his Consultant Psychiatrist. There was considerable overlapping on the reports from different doctors including the assessment of the Company Doctor of 19 February 2016, which states that “The prognosis for [the complainant] to return to work in a satisfactory capacity, even in the absence of his stressor, is in my opinion very guarded given his prolonged absence from the workplace” and his own Consultant Psychiatrist of 7 October 2016 which states “I am of the strong opinion that [the complainant] is incapable of carrying out the duties associated with such post due to his mental health difficulty”.

The respondent claims that in a case where a staff member has had their employment terminated while on long term sick leave, an employer needs to prove three key principles (Bolger v Showerings Ltd [1990 ELR 184]):

i) That the employee was advised their employment was at risk.

The respondent claims that during several meetings between it and the complainant as well as correspondence between the two parties, the complainant was advised that his job was at risk and the respondent could not keep his job open indefinitely.

ii) That the employer took reasonable steps to establish the medical condition.

The respondent notes that the complainant had a number of medical examinations with the company doctor as well as his own Consultant Psychiatrist. In a report from his own Consultant dated 7 October 2016 he states he is “of the strong opinion that he is incapable of carrying out the duties associated with such a post due to his mental health difficulty”.

iii) The employee must be given a chance to be heard and return to work.

The respondent claims numerous meetings took place between the complainant and the respondent from the time the complainant commenced sick leave in May 2014 to his date of leaving on 8 June 2017. The complainant was offered several transfers to different parts of the service, most of which he declined out of hand and one which he attempted for two days before leaving. In order to ensure full and fair procedures, an external HR Consultant was commissioned to hear the complainant appeal against the decision to dismiss him.

The respondent claims that the three requirements on it to show that the termination of employment due to long term illness was fair; namely, that the employee was advised their employment was at risk; that the employer took reasonable steps to establish the medical condition and that the employer must provide a reasonable opportunity for the employee to return to work, it has more than satisfied the tests identified by the High Court in this regard. Throughout the process, the complainant’s prognosis remained consistent and he was offered every opportunity to participate in the process and be heard throughout. The respondent claims that it always dealt with the complainant in a fair, open, transparent and respectful manner.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the respondent.

In the case of Melbury Developments v Arturs Valpetters [EDA0917] the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability".  It was not in dispute between the parties that the complainant has a disability within the meaning of Section 2(1) of the Employment Equality Acts.

I note that depression and anxiety have long been established by the Equality Tribunal and Labour Court as coming within the definition of disability within the meaning of the Acts. I note the definition of a phobia, which seems to be consistent in many of the online dictionaries I have consulted where it has been defined as “an extreme or irrational fear of or aversion to something” [the Oxford dictionary]. The online Merriam-Webster medical dictionary defines phobia as “an exaggerated usually inexplicable and illogical fear of a particular object, class of objects, or situation”. Elsewhere, I note that a phobia has been defined as “a type of anxiety disorder, defined by a persistent and excessive fear of an object or situation” and that the “phobia typically results in a rapid onset of fear” and “the affected person goes to great lengths to avoid the situation or object, to a degree greater than the actual danger posed” [American Psychiatric Association (2013) Diagnostic and Statistical manual of mental disorders (5th edition, Arlington]. Finally, I should note the medical evidence presented by the complainant’s medical reports was not challenged by the respondent. In particular, I note the complainant’s Consultant Psychiatrist states that the complainant “suffers from a specific phobia” and that phobia has “invoked extreme physical reaction ... including gastrointestinal disturbance, diaphoresis (sweating) and symptoms consistent to panic attacks”.

The definition of a disability has been interpreted in an extremely broad and encompassing manner; work place stress was deemed a disability in Mr. O v. A Named Company DEC-E2004-052. The complainant claims that he suffered a wide range of disabilities while working with the respondent in the form of stress, anxiety, depression and a phobia. Noting the broad definition of a disability as provided for under the Acts, I concur that the complainant was medically diagnosed as suffering from a phobia which triggered severe anxiety, work stress and led him into a state of clinical depression at one point and therefore he is covered under the definition of a disability in the Act.

Accordingly, the issues for decision in this case are (i) whether he was discriminated against by the respondent in relation to discriminatory dismissal on the grounds of disability; (ii) Whether as a person with a disability within the meaning of Section 2 of the Acts, the respondent has failed to provide him with reasonable accommodation contrary to Section 16(3) of the Acts, and (iii) whether by the complainant making an official complaint to the Workplace Relations Commission he was subjected to victimisation contrary to Section 74 of the Employment Equality Acts. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the complainant is not fully capable, within the meaning of the Section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of Section 16(3)(b) of the Acts which provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if s/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

Section 16 of the Acts was interpreted in the decision A Health and Fitness Club -v- A Worker [EED037] and as upheld by the Circuit Court (Humphreys  –v- Westwood Fitness Club), where it was held that the employer should undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake his/her duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. The nature and extent of the enquiry depends upon the particular circumstances of each case but “…an employer should ensure that he or she is in full possession of   all of the material facts concerning the employee’s condition…” and “The employee must also be allowed an opportunity to influence the employer’s decision”. The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel [EDA0721] as: “The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”. In An Employer -v- A Worker [EDA0413], the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”.

I note the decision in A School –v- A Worker [EDA1430] where the Labour Court held that “The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphries v Westwood Fitness Club and in A Worker v An Employer a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.”

Finally, I must also make reference to the clear interpretation placed on section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly [2018] IECA 11 case when setting out the relevant case law in this area. This case is the most recent authority on requirements in relation to reasonable accommodation. In reference to this decision, I note the recent Labour Court case, Excellence Limited v. Adam Herzyk[EDA1815] where the Court found,

“The aforementioned section of the Act [Section 16] was the subject of detailed consideration by the Court of Appeal in Nano Nagle School v Marie Daly [2018] IECA 11. Ryan P explained the import of section 16 as follows:

“54. It follows from these citations that section 16 does not require any special construction because interpretation of its meaning is available in the ordinary meaning of its words. The section does envisage some distribution of tasks, just as it also specifies time adjustments, as HK Denmark found was the case with the Directive. It is correct to infer that the requirement to be able to perform all the tasks of the position means the tasks after adjustment or distribution. Adjustment to access and workplace and hours and tasks does not mean removing all the things the person is unable to perform; in general it is reasonable to propose that tasks that are not essential to the position could be considered for distribution and/or exchange. That does not mean stripping away essential tasks, especially the precisely essential elements that the position entails. On a legitimate, reasonable interpretation it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal. The section requires full competence as to tasks that are the essence of the position; otherwise subsection (1) is ineffective. The fundamental proviso in section 16 (1) must be respected. The section does not in its terms make the process of enquiry a ground of default, neither does a failure to consult constitute breach of the duty imposed.”

Discussion and Application

The unavoidable conclusion to be drawn from the Complainant’s own submissions to the Court is that he was, and remained as of the date of his dismissal, unfit to perform the core duties of the job for which he was employed. In the circumstances, and having regard to the clear interpretation placed on section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly [2018] IECA 11, the Respondent was not under any obligation to provide the Complainant with an alternative job in another department or to remove the core duties of the job for which he had been employed such as to substantially alter the character of that job.

The correspondence opened to the Court amply demonstrates the Respondent’s bone fide efforts to engage with the Complainant in relation to facilitating his return to work and to make, where possible, reasonable accommodation for his disability, as required under the Act. However, the Complainant has failed to demonstrate a corresponding willingness on his part to engage with his former employer in relation to these matters. In the circumstances, the Court finds that the Respondent has discharged its obligations to the Complainant under section 16 of the Act and the appeal fails in all respects.”

Without doubt, this assessment is somewhat arduous for employers. However, these measures are deemed necessary in providing the correct equilibrium on the balance of rights of the employer and employees with disabilities to ensure that the appropriate solution is found to provide the necessary accommodation to allow disabled people to partake in the workplace free from discrimination.  

Discriminatory Dismissal

The first issue that I must decide relates to the complainant’s claim that he was subjected to a discriminatory dismissal on the grounds of his disability. Based on the extensive evidence and substantial submissions made by the parties, which I have captured in detail above to demonstrate the nature of the case, I have established a number of key facts and I make the following findings:

·         The complainant was employed as a Care Assistant with the respondent from March 2006.

·         The complainant was absent from work on continuous sick leave as a result of work related stress/depression/anxiety and in particular his phobia from May 2014 until his employment was terminated with effect from June 2017.

·         The complainant submitted medical evidence and certificates from his own GP, the company Occupational Health doctor and his own Consultant Psychiatrist on numerous occasions during the period of his absence confirming that he was (1) unfit to attend work, and (2) that he was unfit to attend work should he be expected to work in an environment where he would be exposed to work with his stressor.

·         During the course of the complainant’s three-year absence there was regular contact, including meetings, emails, phone calls and letters between the complainant and the respondent to discuss his medical condition and looking at possible solutions/ alternatives.

·         Attempts were made to examine whether the complainant might be in a position to return to work with the respondent as a Care Assistant. Various options were offered.

·         It was explained to the complainant by the respondent on several occasions during these meetings and as far back as, at least March 2016, that his position could not be kept open indefinitely and that it was the respondent’s position that it wanted to assist in the return of the complainant to work.

·         The complainant had suggested different options that he believed would be a possible solution to a work environment without him being exposed to his stressor and having to carry out intimate care duties.

·         The respondent has said that there are no positions where intimate care could not be ruled as a possible duty for all Care Assistants.

·         The parties met and agreed a return to work plan for the complainant on 12 November 2015. However, the complainant chose not to pursue that some five days later.

·         There was an outstanding disciplinary charge against the complainant that he would have to face on his return to work and he was already on a final written warning at that point in time.

·         The complainant chose to activate an application for early retirement on the grounds of permanent infirmity and this application was supported by a medical report from his own Consultant Psychiatrist and previously from the Occupational Health Company Doctor to detail the level of his mental health difficulty.

·         The application to retire on the grounds of permanent infirmity was withdrawn in December 2016 and the complainant was invited to meetings which culminated in a decision by the respondent to terminate his employment on the basis that he had been absent from work for over three years and there was no prospect of a return date in the near future.

·         The complainant appealed the decision to terminate his employment and the dismissal was upheld by an external HR Consultant.

The key areas of contention between the parties in this matter centres around (i) whether or not the respondent was in full possession of all the material facts concerning the complainant’s medical condition, (ii) whether the various options open to the respondent were fully considered prior to taking the decision to terminate his employment and (iii) whether the respondent had put the complainant on notice that his job was at risk.

The complainant, on the one hand, has argued that the respondent did not take into consideration any medical evidence or reports that said that he could return to work should he be freed of the task of intimate care and not exposed to his stressor and that it failed to fully take on board the medical recommendations available to it. The complainant also claimed that the respondent failed to look at real options available to it and did not listen to his solution, thus failed to effectively engage with him through the process. The complainant claims that the respondent had not raised the issue that his job was at risk prior to making the surprising decision to dismiss him.

The respondent, on the other hand, claims that it was fully aware of the complainant’s medical position and had on numerous occasions been provided with medical reports on the complainant’s situation. However, it maintained that notwithstanding, it did not have any positions where intimate care was not required. It claimed that intimate care was an important role in all Care Assistant job specifications and that it could not be separated from the overall role. It claims that although it had offered various alternatives to the complainant it did not have a position that could accommodate the complainant’s specific ideal scenario. It claims that since there was no sign of an improvement to the complainant’s circumstances and having given numerous indications over the previous 14 months that his post could not be left open indefinitely, it felt that after three years out on sick leave it decided to make the decision to terminate his employment on the grounds of incapacity.

It is clear from the case law cited above that employers are required to adopt a process orientated approach in terms of attempts to satisfy its obligations under Section 16 of the Acts which, in practice, requires the employer to be in full possession of all of the material facts concerning the employee’s medical condition or disability before a decision is taken to dismiss a person on the grounds of incapacity.

Having regard to the totality of the evidence adduced, I am satisfied that the respondent complied with its obligation to adopt a process orientated approach in that it fully engaged with the complainant at regular intervals throughout the duration of his three-year absence from work. I find that the respondent was fully informed and in full possession of all the material facts regarding the complainant’s medical condition when the decision was taken to terminate his employment on the grounds of incapacity. In this regard, I note that the complainant was invited on multiple occasions to look at possible options to facilitate a return to work, most notably 12 November 2015, when an agreement was reached, only for the complainant failing to trial the options. I find this very unfortunate as it is clear that these arrangements were developed following close collaboration by the parties. I note after which the medical reports that followed seriously question the complainant’s ability to return to work at all. I am satisfied that the complainant was fully advised by the respondent that dismissal was being contemplated, if he was not in a position to provide an indication as to when, or if, he would be in a position to return to work to perform the duties of a Care Assistant.

I am satisfied that the complainant was afforded the opportunity to influence the respondent’s decision as to whether or not his employment would be terminated in that he was requested on several occasions to provide relevant medical information and reports from medical professionals. There is extensive evidence of all the meetings and interactions between the parties looking at the possible options and solutions. At this point I refer again to the interpretation placed on Section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly [2018] IECA 11, which was also considered in particular in Excellence Limited v. Adam Herzyk [EDA1815] where theCourt found that, “The unavoidable conclusion to be drawn from the Complainant’s own submissions to the Court is that he was, and remained as of the date of his dismissal, unfit to perform the core duties of the job for which he was employed. In the circumstances, and having regard to the clear interpretation placed on section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly …”. I note the similarities in the cases. Accordingly, I prefer the respondent’s evidence on this matter.

Overall, I am satisfied that the respondent acted in a reasonable manner towards the complainant in keeping his position open for a period of three years. Furthermore, I am satisfied that there was no obligation on the respondent to keep his position open indefinitely in circumstances where his own doctors, despite repeated requests to do so, could not provide any indication as to when he would be in a position to return to work in the capacity of a Care Assistant. Having regard to the forgoing, I find that the complainant was not subjected to a discriminatory dismissal on the grounds of his disability contrary to the Acts.

Reasonable Accommodation

The second element of the complainant’s claim which I must decide relates to the claim that the respondent failed to provide the complainant, as a person with a disability, with reasonable accommodation contrary to Section 16(3) of the Acts.

It was not in dispute that the complainant had been certified unfit to perform his duties for long periods during the three-year period from May 2014 until his employment was terminated with effect from June 2017. It would appear that there was no issue between the parties when the complainant was deemed simply as unfit to work. The issue that is in dispute is the instances where the medical evidence qualified that the complainant was deemed unfit work should he be exposed to his stressor, otherwise he was deemed fit to return to work. As I have already stated in my findings above, I am satisfied that the respondent was fully informed and in full possession of all the material facts regarding the complainant’s medical condition throughout the period of his absence. I am satisfied that there was frequent medical assessments and reporting of same to the respondent. I am satisfied that the respondent was in regular contact with the complainant throughout this period in order to obtain updates in relation to his medical situation and to try and ascertain if, and when, he would be in a position to return to work as a Care Assistant.

I am satisfied that the respondent has demonstrated that it has spent much time assessing the needs of its clients and the staff roles within the business in particular the Care Assistant role. It has demonstrated a detailed knowledge of its services and its clients’ needs throughout its evidence. In assessing the complainant’s needs, I again note, as above, the decision in A Health and Fitness Club v. A Worker which was upheld by the Circuit Court decision in Humphreys v. Westwood Fitness Club, where it requires the employer to undertake a two-stage enquiry. Firstly, the employer has to establish the employee’s capacity to undertake his/her duties and secondly, if it is apparent that the employee is not fully capable, Section 16(3) of the Acts requires the employer to consider what, if any, special treatment or facilities may be availed of by which the employee can become fully capable. Of course, this is specifically to determine a disabled individual’s capabilities and needs to carry out work required for the role.

The tests set out a very basic and fundamental principle for every employer who needs to be mindful of the particular circumstances of each of its employees and of course the nature and extent of the enquiry depends upon the particular circumstances of each case. This particular situation has the added complexities of the caring role that the respondent has and is duty bound to provide a caring service for service users/clients. Many, if not most, require a competent trustworthy person with the necessary skills set to care for their needs. The principle where “…an employer should ensure that he or she is in full possession of all of the material facts concerning the employee’s condition…” and “the employee must also be allowed an opportunity to influence the employer’s decision” is fundamental to this process. The proactive nature of this process was confirmed by the Labour Court in A Worker -v- A Hotel as: “The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability”. As I noted above in An Employer -v- A Worker, the Labour Court also confirmed that an objective test applies and that the extent of the special treatment and facilities required: “…may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”.

In considering this issue, I note that it was in dispute between the parties as to when the respondent was on notice of the complainant’s disability. I note that in July 2014 the respondents Occupational Health Department first recorded a medical prognosis of a potential difficulty for the complainant working with people requiring intimate care. I note the complainant claims that it was earlier, however I am not convinced and I will deal with that below. Notwithstanding, from this point follows a three-year period when the complainant goes out on sick leave and never returns to work. I have provided in both the complainant’s evidence and the respondent’s evidence above a detailed account of the interactions between the parties which set out in no uncertain terms the level of engagements that was ongoing at this time.

I do not intend to paraphrase all the evidence once more, however what is certain is that prior to the complainant going out on sick leave he was working in Facility B since February 2012 and was preforming all the duties of a Care Assistant including intimate care, albeit with some difficulties. I note he sought redeployment, options were offered during the years but not taken up. I note that the respondent has determined that it did not have a position within its service that did not require some element of intimate care. I note that after various meetings, various offers of relocation were offered but none of them materialized as a satisfactory solution.

I note that long periods of time appear to have been lost by cancellations of meetings and appointments predominately if not exclusively on the complainant’s side, and unfortunate periods where the complainant was certified unfit to return to work or attend scheduled meetings. It is clear from the medical evidence presented that the complainant’s condition appears to deteriorate from the latest Occupational Doctor’s report and his own Consultant Psychiatrist’s report.

During the hearing I noted a particular exchange between the parties in relation to the role of a Care Assistant. The complainant was adamant that the duties of intimate care could be separated from the role and assigned to another person and therefore he could return to work on that basis. The complainant was of the view that this duty represented a small percentage of time of the entire role of the Care Assistant. However, the respondent was adamant that this role was one of the core roles for a Care Assistant and cannot be compromised. The importance of this role cannot be lessened in the fundamental care of its clients. It claims that there were no places within its services where intimate care would not be part of the duties of a Care Assistant and it could not guarantee the complainant or give assurance otherwise. I noted the different services and facilities and the difference of opinion between the parties as to the level of intimate care required in each. I note the complainant was not in a position to know in-depth every service or facility offered by the respondent, whereas, I am satisfied that the respondent was aware and very forthright on what was required and where. At this point I refer again to the interpretation placed on Section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly [2018] IECA 11, which was also considered in Excellence Limited v. Adam Herzyk [EDA1815]. Accordingly, I prefer the respondent’s evidence on this matter.

I note that many offers were made to relocate the complainant to assist his return to work. The complainant deemed none of them suitable to his needs. I am satisfied that on 12 November 2015 the complainant and his representative met with Mr. X and Ms. Y. It was agreed at this meeting that a rehabilitation plan would be put in place to facilitate the complainant’s return to work following a long period of sick leave. The aim of the rehabilitation plan was to get him “back to your permanent part time post of care assistant in Facility B”. This would be done by way of the complainant working in a temporary Care Assistant role for a period of four to six weeks in Service 2, working 30 hours per week. It was also agreed at this meeting that Mr. X would “…meet the Facility B team to arrange how the duty of dealing with soiled nappies of the people we support can be accommodated by the team and not by you.” I note that the possibility of redesigning the role was on the table for the complainant to trial. However, he failed to take up the option and therefore we will never know of the possibilities.

Accordingly, having considered the extensive evidence in this case I am satisfied that the respondent complied with the process-orientated approach required of employers as developed by the case law which requires employers to take account of medical evidence in terms of its obligations under Section 16 of the Acts.   Accordingly, I find that the respondent has not failed in its obligation to provide reasonable accommodation to the complainant as a person with a disability in terms of the manner in which it dealt with the complainant.

At this point I deem it necessary to look at some of the other evidence presented to me and offer my observations. I note the complainant claims that he told Dr. A, a Clinical Psychologist for the respondent, of his “phobia of soiled nappies” in April/May 2006 and this constitutes disclosure of his disability and the respondent was on notice. The respondent said that Dr. A was not acting in any professional role or capacity on its behalf with the complainant and there is no record of such a disclosure. I note that matters relating to the disclosure of a disability is largely settled in law. The complainant has cited Connacht Gold Co-operative Society v. A Worker [EDA0822] in this regard. I am satisfied that the respondent’s evidence is more convincing in this matter. At best it appears that the complainant has disclosed his evidence by confiding in Dr. A in a private or personal capacity and I do not accept that the respondent was put on notice at that time.

I note that the complainant states that he was employed in Service 3 for 5 years and had no intimate care duties and he was moved by the respondent while on notice of his disability. I note that the respondent disputes that fact. I note that the complainant was moved following disciplinary matters while in Service 3 and although the respondent has not stated that he could not return back there, I have noted where it said that it has no positions available in its services that did not require intimate care. As noted above I do not accept that the respondent was on notice of the complainant’s phobia at the time of moving him from Service 3.

The complainant was asked at the hearing how he found himself to be following a caring profession as a Case Assistant knowing that he has a phobia in relation to providing intimate care. There was much discussion on the level of intimate care that he could provide, and he was clear that he could provide much of the service but his phobia was “of soiled nappies”. I have heard all the evidence and having examined in some detail the definition of a phobia and read up on some of what is the characteristic of a phobia and the horrendous physical and emotional consequences that it has for the sufferer. In my research I have read where people go to extraordinary extravagances to avoid ever coming in contact with their dreaded phobia. I must state that I am at a complete loss to understand how the complainant could have decided to pursue a career as a Care Assistant of disabled people who by the very nature of the role could/would possibly expose him to his phobia. The complainant attempted to explain his journey into the caring role at the hearing to make me understand how he settled on this career path. However, it is my observation that it is somewhat questionable that the complainant was correctly advised on his career choice.

Victimisation

Victimisation is defined by Section 74(2) of the Act as follows: -

“For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c).”

In Determination EDA1017, Department of Defence v Barrett, this Court held that in order to make out a claim of victimisation under the Act it must be established that: -

a. The complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

b. The complainant was subjected to adverse treatment by the respondent, and,

c. The adverse treatment was in reaction to the protected action having been taken by the complainant.

In the case of the Public Appointments Service -v- Kevin Roddy [EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.”

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that a complainant demonstrates the connection between his actions in relation to defending entitlements under the Act and the adverse treatment complained of.

In relation to the victimisation claim, the complainant has identified two incidences where he claims amount victimisation under the Acts. The first relates to a meeting held in November 2014 where he was invited to what was supposed to be a discussion about his return to work but it turned out to be a discussion about possible inappropriate texts and calls he was making to staff and where he was advised of potential disciplinary proceeding on his return to work. The second relates to the close proximation from lodging the complaints with the Workplace Relations Commission and the wheels being put in motion by the respondent to dismiss him.

In relation to the first point, I note that the date of this meeting was November 2014 and thus predates the complaints lodged with the Workplace Relations Commission. As set out in the Department of Defence v Barrett case above, the protected act is the first stepping stone when evaluating victimisation in the three-step test. Followed by the alleged adverse treatment by the respondent and finally linking the adverse treatment, was in reaction to the protected action. Accordingly, I am satisfied that it is clear that from a review of the dates of the events that this was not the case in this instance.

In relation to the second set of events, I am very mindful of the chronology of events around this situation, namely substantial work had been achieved to develop a return to work plan (November 2015), albeit the complainant was aware that he would be facing a possible disciplinary process on his return to work. I note some five days after that plan was agreed, the complainant withdrew from that plan. I note that the following medical evidence and doctor’s report raises serious concerns that the complainant would ever be able to return to work in any capacity (February 2016), after much deliberation the complainant had applied for retirement on permanent infirmity and that application was supported by the complainant’s own Consultant Psychiatrist’s report (October 2016), which again raised serious concerns in the complainant ever returning to work. This application was in train until the complainant informed the respondent that he was not going to peruse that avenue any longer (December 2016), and now wished to return to work, which essentially was turning back the clock to the situation in November 2015 again. Three years had now elapsed.

I note that the respondent sought medical evidence supporting an improvement in the complainant’s condition, but none were forthcoming and it decided to put in motion the termination of the complainant’s employment some three years and two months after he first went out on sick leave. I note the respondent’s evidence that this decision was a long time in the making, and was done after careful consideration of the facts, having full view of the complainant’s medical history and was not a retaliatory reaction to the Workplace Relations Commission complaint. I note there was an earlier complaint before the Workplace Relations Commission (May 2016), where there were no signs or suggestions of any ill consequences/victimisation from the complainant resulting from lodging that complaint. Therefore, on the balance of probabilities, I am satisfied with the explanation from the respondent that the events happened to be close in timing but the dismissal was not triggered by the lodging of the complaint with the Workplace Relations Commission. Accordingly, I find that the respondent has not victimised the complainant in terms of Section 74(2) of the Acts in terms of alleged adverse treatment.  

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that:　

(i)                  the respondent did not discriminate against the complainant on grounds of disability in terms of Section 6(2) of the Acts, in respect of discriminatory dismissal contrary to Section 8 of those Acts, and

(ii)                the respondent did not discriminate against the complainant on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts in respect of a failure to provide her with reasonable accommodation for her disability within the meaning of Section 16(3) of the Acts.

(iii)               the respondent has not victimised the complainant in terms of Section 74(2) of the Acts.

　Accordingly, her complaint fails.　

Employment Equality Acts - Discriminatory Dismissal - Reasonable Accommodation - Victimisation – Care Assistant – phobia.