ADJ-00008372

Complainant

Respondent

Anonymised Parties

A Factory Supervisor

A Manufacturing Company

Representatives

Dorothy Walsh Dorothy J Walsh & Company

Maria O'Donovan Maria O'Donovan & Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011090-001

02/05/2017

This dispute involves a claim by a complainant that she was discriminated against by the respondent on the grounds of disability, in terms of section 6 (2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 when they failed to provide her with reasonable accommodation for her disability.     There is also a claim of discriminatory dismissal and of victimisation.  

The complainant referred a complaint against the above respondent on the 2nd of May 2017.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. Written submissions were received from both parties.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 20th of April 2018.

The complainant submits that

she was employed by respondent from January 2007 to November 2016,

she was diagnosed with breast cancer in January 2014 and from March 2014 was sick and unable to attend work by reason of a cancer diagnosis and treatment,

during this time the complainant received an income from her health insurance policy under the repsondent’s medical insurance scheme,

she sought to return to work in April 2016 and the Respondent failed to facilitate this by putting obstacles in the way of the Claimant returning to work,

when the Claimant sought proper provision for a return to work to be put in place the Respondent dismissed the Claimant and refused her any proper procedures,

she was discriminated against, on grounds of disability when the respondent failed to provide her with reasonable accommodation for her disability,

she was dismissed by the respondent on the 2nd of November 2016 which amounts to a discriminatory dismissal on grounds of disability.

The respondent submits that

The complainant was employed by respondent from January 2007 to   November 2016,

the complainant was diagnosed with cancer in January 2014 and from March 2014 was absent from work sick and unable to work by reason of a cancer diagnosis and treatment,

the complainant sought to return to work in April 2016 and the respondent referred her for appropriate medical assessment to ascertain if she was fit to return to work,

having received a medical assessment confirming that the complainant was fit to return to work, the respondent agreed a nine week phased return to work in the form of a shadowing plan,

 the respondent requested that the complainant return to work on the 20th of September and again on the 4th of October, 2016,

the complainant failed to show up for work on either of these appointed dates and did not provide any explanation for this,

the complainant’s representative weeks later informed the respondent by phone that the complainant’s GP had now concluded that she was unable to work for the foreseeable future,

the complainant’s employment was terminated on 2nd of November 2011 due to frustration of contract.

The issue for decision by me is whether or not, the respondent discriminated against the complainant, on grounds of her disability, in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her dismissal and in relation to a failure to provide her with reasonable accommodation for a disability. The complainant withdrew the claim of victimisation at the hearing.     In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.    

It is submitted that the complainant that is a person with a disability, within the meaning of section 2 of the Employment Equality Acts.

Disability” is defined in Section 2 of the Acts as meaning –

                “(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”.

The complainant advised the hearing that she had been diagnosed with cancer in January 2014.   She stated that she advised her production manager Mr. F of this diagnosis at the time following which she went on extended sick leave from work from March 2014 before seeking a return to work in April 2016.

The complainant provided direct evidence of her cancer diagnosis and treatment at the hearing of the claim.   She stated that she had a mastectomy in March 2014 followed by chemotherapy and was unable to return to work until April 2016 at which point she engaged with the respondent on the matter of a phased return to work. The complainant in her evidence also referred to numerous medical reports copies of which were submitted in evidence.

The respondent accepts that the complainant had a disability for the purpose of the act but disputes that such disability still existed at the time she sought to return to work in August 2016.

I am satisfied, from the totality of the evidence adduced on this matter, that the complainant is a person with a disability within the meaning of section 2 of the Employment Equality Acts 1998 to 2015 and that the respondent was aware of the complainant’s disability.

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.   If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary.   The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts 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, 1998 to 2008 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 is not or is a person with a different disability”.

Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. It requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club .  

In the case of A Health and Fitness Club -v- A Worker the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.

The complainant advised the hearing that she was diagnosed with cancer in January 2014. She stated that she advised her production manager Mr. F of this diagnosis at the time.     The complainant told the hearing that she had undergone a mastectomy in March 2014 and afterwards had undergone chemotherapy.   The complainant told the hearing that she was unable to return to work for a period of two years and that she had taken paid holidays for part of this and had also been entitled to six weeks sick pay from the respondent after which she received payments from her health insurance policy in accordance with her income protection plan.

The complainant advised the hearing that she had been unfit to return to work for a period of two years commencing in March 2014 due to her cancer diagnosis and treatment. The complainant told the hearing that she had in March 2016 sought a return to work on a phased basis. The complainant told the hearing that the respondent initially refused her application to return to work on a phased basis stating that none of its staff worked part time on a line on which others were working full time.  

The complainant told the hearing that her medical insurance provider then stepped in on her behalf and met with the respondent to discuss the complainant’s proposed return to work. The complainant told the hearing that the outcome of these discussions was a proposal that the complaint would be provided with a 6-week phased return to work in the form of a ‘shadowing plan’. This meant that the complainant would shadow someone else for a period of six weeks and that she would start with a few hours a day in week 1 and gradually build up to working a full five-day week after week 6.  

The complainant told the hearing that she was not going to be paid for the six-week period while she was on the ‘shadowing plan’ but that she would continue to receive her insurance policy income protection payments for this period.   The complainant stated that the respondent advised her that she was expected to be fully fit to return to work once she had completed the six weeks on the ‘Shadowing plan’ and that it was expected that she would then return to her full contracted hours including shift work.

The complainant advised the hearing that it was her intention to return to work following the agreement of this ‘shadowing plan’ but that she had then suffered a number of setbacks and ended up back in hospital in September 2016 for additional minor operations and following which she suffered additional symptoms for the next three months as well as side effects from the medication she was on.   The respondent advised the hearing that it was not made aware of these setbacks and that no medical report was provided to indicate that there was any change in the complainant’s state of health after agreeing the return to work ‘Shadowing plan’.   The complainant did not dispute this.

The complainant told the hearing that the respondent had agreed to the ‘shadowing plan’ but that they had also stated that the complainant would have to undergo a medical to establish that she was fit to return to work.   The complainant attended a medical assessment on the request of the medical insurance company who provided her income protection plan, with their appointed doctor, Dr. G. in July 2016. Following this assessment Dr. G issued a report in August 2016 stating that the complainant was fit to return to full time work without restrictions. This report was issued in August 2016.     Following this report the medical insurance provider indicated that they would be ceasing their income protection payments to the complainant from the 1st of October 2016.

The respondent following this appointed its own Occupational Health Physician Dr. T to assess the complainant for her fitness to return to work.   Dr. T met with the complainant on the 1st of September 2016. Following receipt of Dr. T s report and recommendations contained therein the respondent proposed that the complainant return to work on a phased basis over a period of nine weeks and that she would be reviewed by Dr. T at the six-week mark.   This proposal was contained in a letter to the complainant’s representative dated the 13th of September 2016 which proposed that the complainant return to work on the 20th of September 2016.

The respondent told the hearing that it had following receipt of the medical report from Dr. T requested that the complainant return to work on the 20th of September.   The respondent stated that this was communicated to the complainant’s representative by letter dated 13th of September 2016 and a reminder was sent by email on the 19th of September 2016. The respondent told the hearing that the complainant did not return to work on the 20th of September and following this a letter issued to the respondent from the complainant’s representative dated the 20th of September which stated that they had forwarded the letter of 13th of September to the complainant and were awaiting her instructions in regard to same. The respondent replied to this letter on the 23rd of September asking for a response to their letter of 13th of September and advising that they had operational, logistical and other requirements to put in place for the complainant’s phased return to work. The complainant’s representative replied to the respondent on the 28th of September with a series of questions in respect of the complainant’s pay and other matters surrounding her proposed return to work. This letter also stated that the complainant was agreeable to a return to work and was in agreement with Dr. T’s recommendations in that regard.   This letter also sought clarification that the complainant would be restored to her full salary on the 1st of October 2016, given that the complainant had been advised by the insurance company that her income protection payments would cease from the 1st of October 2016.

The respondent replied to this letter on the 29th of September responding to the issues raised and stating that the complainant would be paid for hours worked and proposing a return to work date of the 4th of October.   The complainant’s representative did not reply to this letter and a reminder was sent by the respondent on the 3rd of October 2016 asking if the complainant was returning to work on the 4th of October and if not, asking when the complainant would be returning.   It would appear that no response issued from the complainant in respect of the return to work date of 4th of October and the next correspondence issued from the complainant’s representative on the 6th of October requesting the complainant’s medical reports from the respondent. This was replied to on the 7th of October by the respondent who again requested a response to their correspondence suggesting a return to work date of the 4th of October and asking for confirmation that the complainant wished to return to work and asking for a date within the next 14 days on which the complainant would return to work.

The complainant’s representative did not reply to this letter and a reminder issued from the respondent on 14th of October 2016.   A further letter issued from the respondent on the 18th of October asking for a copy of the complainant’s medical report from her GP of that date. It appears from later correspondence and from the evidence adduced that a phone conversation took place on 19th of October between the parties in which the complainant’s representative advised the respondent that the complainant’s GP had now concluded that she was not fit to return to work for the foreseeable future.  

This phone conversation is referred to in a letter dated the 2nd of November 2016 from the respondent to the complainant.   An email also issued from the respondent to the complainant’s representative on 28th of October asking for correspondence and for the GP’s medical report of 18th of October which was to be sent to the respondent but which they still had not received.

A letter issued from the respondent on the 2nd of November again requesting the GP’s medical report which was mentioned in the phone conversation of 19th of October and this letter states that the respondent’s understanding following the phone conversation of the 19th of October is that the complainant’s GP has now advised her that she is unable to return to work for the foreseeable future.   The letter goes on to state that the complainant’s employment contract has now been frustrated and will now be terminated.   A further letter issued from the respondent on the 6th of November again asking for the GP’s report of the 18th of October.

The respondent advised the hearing that following this letter it received two letters from the complainant’s representative which were dated the 21st of October 2018 but which the respondent only received on the 7th of November 2018 after they had advised the complainant that they were terminating her employment. However, the complainant did not respond to the letter of 2nd of November.     A further letter issued from the respondent’s on the 9th of November responding to issues raised in the letters of 21st of October (which were only received on the 7th of November) and referring to the fact that the respondent had been engaging with the complainant in respect of her return to work since April 2016 and having proposed start dates and then later requested a start date from the complainant which was not received, the respondent reiterated its position that the complainant’s contract had been terminated and that she would be issued with her P45 in due course.    

The complainant advised the hearing that she was dismissed by the respondent by letter dated the 2nd of November 2018.

The respondent agreed that the complainant’s employment was terminated on this date but stated that this action was only taken after it had requested that the complainant return to work on 20th of September 2016 and again on the 4th of October and after the respondent had been told by the complainant’s representative on the 19th of October, that her GP had now concluded that she was not fit to return to work for the foreseeable future.

The respondent went on to state that the complainant had previously stated that she agreed with Dr. T’s recommendations on a nine-week phased return to work and she had asked for confirmation that her salary would be restored from the 1st of October 2016 but had not replied to their requests that she return to work on either of the two proposed dates. The respondent stated that the complainant had also failed to provide an alternative date for returning to work or to give any indication that she would not be returning on either of the proposed dates. The respondent stated that this had left them wondering whether she would return to work at all. The respondent told the hearing that the complainant’s representative then advised them by phone on the 21st of October 2016 that the complainant was unable to return to work for the foreseeable future and that this was the conclusion reached by her GP in her most recent medical report.

The complainant at the hearing agreed that she had not returned to work on the specified dates but stated that she had at this time suffered further setbacks with her treatment stating that she had to undergo a number of minor operations in September 2016 and that she had a lot of side effects from the surgery and from the medication she was on. The complainant at the hearing did not dispute the respondent’s claim that she had failed to notify them that she would not be returning on the 20th of September or on the 4th of October and that she had failed to provide them with any date for her return to work after they requested that she provide a date, but she stated that she was at the time undergoing tests to check if her cancer had returned.

It is submitted that the complainant had engaged in correspondence with the respondent in respect of certain matters surrounding her proposed return to work on the 21st of October 2018.     The respondent told the hearing that it had only received the letters dated 21st of October from the complainant’s representative on the 7th of November after it had issued a letter stating that he complainant’s employment had been terminated.   The respondent stated that it had at that point already taken a decision to dismiss the complainant as it felt she was not willing or able to return to her role and that it could not keep the job open indefinitely. In addition, the respondent stated that they had at this point been notified by the complainant’s representative that the complainant’s GP had now concluded that she was unable to return to work for the foreseeable future.

On the issue of reasonable accommodation both parties gave evidence that an agreement was reached that the complainant would be facilitated in returning to work on a phased basis by means of ‘a shadowing plan’ which would see the complainant start off on a few hours a day one day a week gradually building up to a full five days a week after nine weeks on a shadowing plan. The respondent agreed to this and put forward a date of 20th of September 2018 for the complainant to commence this plan the complainant didn’t show up on this date and did not advise that she would not be attending on this date. The respondent then proposed a start date of 4th of October 2018 which again the complainant failed to show up on this date or to provide any indication that she was not attending on this date.   The complainant was then asked to propose a date for her return which she failed to do.   Following this the respondent was advised that the complainant’s GP had now concluded that she was unable to return to work for the foreseeable future.

There was some disagreement at the hearing as to how the complainant was to be paid during this ‘shadowing plan’ and it was stated that initially she was to continue to be paid her income protection payment by the insurance company when attempts were being made for her to return to work in April 2016 but these payments were stopped in October 2016 following a medical assessment by the insurance company which concluded that the complainant was fit to return to work without any special measures. The complainant had not returned to work at this point. It was later agreed that the respondent would pay the complainant for the number of hours worked while she returned to work under ‘the shadowing plan’ and this was confirmed by the respondent.

The respondent stated that despite Dr. G who assessed the complainant on behalf of the insurance company having concluded in August 2016 that the complainant was well enough to return to work without any special measures the respondent referred the complainant to its own Occupational Health doctor Dr. T who recommended that the complainant return to work on ‘a shadowing plan’ for a longer period of nine weeks following which she could return to work full time and that she would be reviewed by him at the six week point.

It appears from the evidence adduced that the complainant agreed to this arrangement and was provided with a return to work date of 20th of September by the respondent. It is clear that the complainant did not show up for work on that date and was then provided with another date for her return to work on a phased basis of the 4th of October, 2018.   Both parties agree that the complainant did not show up for work on either of these appointed dates and did not request or provide an alternative date for her return to work.

The respondent advised the hearing that the complainant did not show up for work on these dates and did not provide any reason or explanation for this.

I am satisfied from the totality of the evidence adduced that the respondent in this case did make inquiries to ascertain the level and extent of the complainant’s disability and did make arrangements to provide special measures to facilitate the complainant in returning to work.

The respondent submits that the complainant made no contact with them or provided no reason for her failure to return to work on the specified dates and that her legal representative then advised them in a phone conversation of the 19th of October that her GP had now concluded that she was not fit to return to work for the foreseeable future.

As stated above, Section 16(3) of the Acts, sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment.

Section 16(3) also requires an employer to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club.   In addition, in applying the Labour Court ruling in 'A Health and Fitness Club Vs a Worker' referenced above, it is clear that there was an obligation upon the respondent in this case, in the first instance, to ascertain the level and extent of the complainant’s disability.

In considering the evidence adduced in this case I note that the respondent in this case did make extensive inquiries into the extent of the complainant’s condition and had agreed appropriate measures to enable her to return to work.

The complainant submits that she was not notified that her dismissal was being considered. The respondent submits that it made the decision to terminate the complainant’s employment after she had failed to show up for work on their proposed return to work dates or provided them with an alternative return to work date and after they were advised by her solicitor that her GP had now concluded that she was unfit to return to work for the foreseeable future.   The respondent did request the medical report of the complainant’s GP on a number of occasions at this point but was not provided with the report.

The respondent submits that the complainant’s employment was terminated due to a frustration of contract given that it had been notified by her representative that she would not be returning to work for the foreseeable future and following considerable engagement and consultation with the complainant between April and October 2016 in seeking to facilitate her return to work.

I note that the respondent in this case provided relatively short timescales for response between notifying the complainant of the proposed measures for her return to work by letter dated the 13th of September which provided her with an expected return to work date of the 20th of September and in correspondence dated 29th of September proposed a further return date of the 4th of October 2016.   Having said that, the parties had been engaged in talks to facilitate the complainant’s return to work since April 2016 when the complainant indicated that she wished to return to work and the most recent medical report available to the respondent had found the complainant to be fit to return to work albeit with a phased return in the form of a ‘shadowing plan’ for a number of weeks which both parties had agreed to.     In addition, there is no indication that the complainant made any attempt to request a later return date or to provide any reason to the respondent as to whether and for what reason these proposed dates were unsuitable.  

It is clear from the evidence adduced that the respondent then took the decision to terminate the complainant’s employment due to the fact that she had not shown up for work on the agreed return to work dates and following a conversation with her legal representative who stated that she had been told by her GP that she could not return to work for the foreseeable future.

The respondent in this case did refer the complainant for a medical assessment and did agree special measures for the complainant return to work and proposed two separate dates for her return before asking that she propose a date to them which she failed to do. I am thus satisfied that the respondent in this case complied with its obligations under section 16(3) putting in place procedures and measures to reasonably accommodate the complainant in her return to work.

The respondent submits that the complainant was not dismissed but that her employment terminated due to a frustration of her contract when she failed to show up for work on either of two appointed dates having agreed a ‘shadowing plan’ for a phased return to work.   The complainant also failed to provide an alternative date for her return to work when requested and eventually the complainant’s representative informed the respondent that her GP had concluded that she would be unable to return to work for the foreseeable future.  

I am satisfied from the totality of the evidence adduced that the respondent in this case complied fully with its obligations under Section 16.     I am also satisfied from the totality of the evidence adduced that any employee who had been out of work for two years and who failed to show up for work on either of two appointed dates having agreed a return to work plan with appropriate measures to facilitate that return to work and who then failed to provide any reason for this failure to attend work or to engage with the employer in respect of an alternative date before eventually notifying the employer that they were now not in a position to return to work for the foreseeable future, would be treated in the same way and that the termination of the complainant’s employment does not amount to less favourable treatment on grounds of disability.   I am thus satisfied that the circumstances surrounding the termination of the complainant’s employment do not amount to a discriminatory dismissal on grounds of disability.    

In the circumstances and having regard to the totality of the evidence adduced in this case I find that the respondent did not discriminate against the complainant on the grounds of her disability in relation to the termination of her employment and did not discriminate against the complainant in respect of a failure to provide her with reasonable accommodation for her disability within the meaning of section 16 of those Acts.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015, I issue the following decision. I find –

(i)            that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 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 of those Acts, and

(ii)           that the respondent did not discriminate against the complainant on grounds of disability in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of the termination of her employment.