ADJ-00010072

Complainant

Respondent

Anonymised Parties

A Production Operator

A Manufacturing Company

Representatives

Dan Walshe 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-00013160-001

17/08/2017

The complainant claims that she suffers from anxiety and panic attacks, she was assigned to an area in the respondent’s factory which exacerbated and triggered her symptoms and sought to move but she was not provided with the appropriate reasonable accommodation.

The respondent claims that it cannot be expected to make accommodations in respect of a condition whose full nature and implications were not disclosed by the complainant. The respondent said the complainant wanted to determine where she was to work. The respondent said that area she was assigned to work in is not a confined space.

The following is a brief summary of the respondent’s case. 

The complainant claims that following an aptitude test, interview process and medical examination she commenced a 6-month fixed-term contract as a general operative with the respondent on 13 February 2017. The complainant claims that she disclosed her medical conditions on her application form and indicated the medication that she was taking, including “takes anti-depressants daily (Venex XL)”. The complainant said that nowhere on the pro forma list of conditions on the medical form did it list the conditions “anxiety or panic attacks”. The company medical examination resulted in her been deemed “medically qualified to perform the essential functions of the job without restriction”.

The complainant underwent training for a 10 to 12-week period and in that time, she only missed one day through illness for suspected Scarlett fever. The complainant said that she raised a complaint over a named team leader and she claims that she was confronted about this complaint on a night out with her peers. She said she was subsequently moved to work on another line so as not to have to work with him. She feels that as a consequence of raising her complaint she was selected to work in Area 1 within the respondent’s Plant, all of the other nine trainees were sent to work in Area 6, although she was told she would be working in Area 6 on the completion of her training.

The complainant claims that Area 6 is a very large area with wide spaces and “lots of air”, she claims that Area 1 is by contrast small, approximately one-quarter its size and contains “massive piles of pallets”. The complainant claims that on her first day working in Area 1 she felt she “could not breath”, she felt there was “barley space to move” and she informed the Day manager that she suffers from anxiety and panic attacks. She said she met with her trainer and told her that she could not continue to work in that area. She claims that she went to the nurse in a very distressed state and said she showed the company nurse that she carried antihistamines in case of anxiety and panic attacks. She said that the nurse was very sympathetic and said she would inform the Daytime shift manager and she would be looked after. She claims that when she went to work the following day she was moved back to Area 6.

The complainant said that she met with Mr. A, who was head of the weekend shift, where she informed him of her anxiety and panic attacks, where she claims was brought on from working in Area 1. She pointed out that all the other trainees were sent to Area 6 and she was the only one assigned to Area 1. She said that Mr. A emphasised that all employees had to be flexible and that she could remain in Area 6 in the short term but she would be moving back to Area 1. The complainant claims that she worked the rest of the weekend in Area 6 without difficulties.

The complainant claims that the following weekend – 13 May - when she arrived at work she was met with Mr. A and another member of staff who again said that she would have to begin working in Area 1. She said she got upset, left the building and attended her doctor where she was declared unfit for work for the 2 days 13-14 May 2017 due to anxiety. The complainant claims that she had a meeting on 18 May 2017 with Mr. A, Ms. B from HR, and her Union Representative, where they discussed her situation. The complainant said she again highlighted that she has anxiety and panic attacks and that she could not work in Area 1. Other options were looked at including a different part within Area 1 but the complainant said that she informed the respondent that she could not work in Area 1 and she was asked what she was going to do to “change herself”. The complainant claims that she received a text message the following day, 19 May 2017, from Mr. A to say that she was to report into work in Area 1 that night when she came on shift.

The complainant claims that she made contact with Ms. B by email that evening and set out that she would not be working in Area 1 as outlined due to the “extreme reaction I experience when in confined spaces”. She offered medical certification should it be needed confirming same. She also set out in this email that she wanted confirmation from the respondent that she would not be expected to work in Area 1. The complainant claims that she got a reply from Ms. B on 22 May 2017 stating that the company cannot confirm that she will not be required to work in Area 1, or areas, other than Area 6. That the nature of the business requires flexibility hence its inter-changeability clause in the company /union agreement.

The complainant claims that she sent a letter to the respondent on 25 May 2017 where she said “… been left with no option only to give you my formal resignation as of today 25-05-2017. This has not been an easy decision for me and I did try to reach a compromise with you, however as per your recent email you have not prepared to consider this accommodation and have in fact made my position untenable.”

The complainant said that she suffers from anxiety and panic attacks, she was assigned to an area in the factory which exacerbated and triggered her symptoms. She claims that the respondent failed, refused and/or neglected to reasonably accommodate her and to consider the options available. The complainant claims that she understands that staff have to be available to inter-change as signed up for in the Employee Handbook. However, the respondent seems to rely on this clause whereas not considering or taking steps to consider reasonable accommodation of the complainant’s disability.

In the complainant’s legal submission, she claims that her disability falls within the categories of conditions set out in the definition of a disability at Section 2(1) of the Acts. The complainant said that it is clear that the respondent had sufficient knowledge of the disability and the respondent explicitly acknowledged that throughout their engagement.

The complainant claims that she has established a prima facie case of direct discrimination and the burden of proof shifts to the respondent to rebut, she quoted the likes of Dublin Corporation v Gibney EE5/1986 and Minaguchi v Winport Lakeshore Restaurant DEC-E2002-020 and An Employee (Mr O) v An Employer (No. 2) [2005] ELR 132 as authorities in support of her case, in particular the latter case, on the failings of the employer to treat the employee in a sympathetic manner following a period of sick leave leading to making life more difficult and ultimately leaving without engaging in the grievance procedures.

The complainant claims that the respondent has failed to provide her with reasonable accommodation, where the employer should have taken a proactive approach to remove barriers and make adjustments to the work environment so that she, an employee with a disability, can be accommodated in the workplace. To this end the complainant has relied in Cahill v Dept. of Education & Science [2012] IEHC 227, where the measures are not to be over-burdensome and the employer should make adequate enquires of all the relevant facts before making a decision which may be to the employee’s detriment as established in Humphreys v Westwood Fitness Club [2004] ELR 296 and extended in An Employee (Mr O) v An Employer (No. 2) [2005] ELR 113.

The complainant claims that at no time did the respondent,

·         Enquire into her disability.

·         Take all relevant factors into account.

·         Get full details of her disability.

·         Consider what options were available to accommodate her.

·         Seek full medial details from her doctor.

·         Investigate if Reasonable Accommodation might be possible.

·         Arrange a meeting to discuss this with her.

The complainant referred to what she determines to be a fundamental breach of contracts on the part of the employers going to the root of the contract and citing supporting authorities where the need to maintain the mutual trust and confidence of the employer/employee contract is paramount.

The following is a brief summary of the respondent’s case.

The respondent manufactures ophthalmic care products and employs over 1300 employees. The complainant was employed on a temporary fixed term contract with a start date of 13 February 2017 and a termination date of 29 September 2017. The complainant formally voluntarily resigned from the company on 25 May 2017. The respondent said that it denies that any dismissal of any kind has taken place.

The respondent said that the complainant was employed as a weekend operator to work 2 x 12-hour shifts (24 Hours) each Saturday and Sunday. She had commenced her training on a 3-cycle shift in a part of the manufacturing Plant knows as Area 6. The respondent said that after approximately 10 weeks of training on 3 cycle shifts, the complainant transferred to the 2 x 12-hour Weekend Shift. The respondent said that before starting her weekend shift the complainant was informed that she would start her first weekend on 6 and 7 May in Area 6 and then would move to Area 1 the following week on the weekend of 13 and 14 of May. The respondent said that when the complainant went to work in Area 1, she said she found the area too small, hot, with employees on top of each other, and could not work in an enclosed space.

The respondent said that Area 1 conforms to all Health and Safety requirements for a work area. The Health & Safety requirements are the very same for all the respondent’s production areas. The respondent presented in depth the various Health and Safety standards that it must conform to in relation to, temperature and humidity; air flow; lighting and lux levels. It states that Area 1 exceeds all Health and Safety requirements.

The respondent states that the complainant’s manager Mr. A offered to let the complainant stay in Area 6 for the weekend of 13/14 May 2017 and then the situation would be assessed with HR on Monday 15 May 2017. The respondent said the complainant was too upset and wanted to go home so Mr. A allowed her to go home. The respondent said that the complainant’s shop steward requested a meeting with Mr. A and a discussion was had but it was clear that the respondent maintained that Area 1 was not a confined space and there was a need for flexibility and interchangeability. More discussions were held with the complainant and a further meeting was held on 18 May 2017 where the complainant advised she had an inability to work in confined spaces and was on medication for anxiety. The respondent advised that alternatives were discussed at that meeting. The respondent said that Mr. A explained that Area 1 was not a confined space and the need for flexibility and interchangeability was essential and the norm for the employees. The complainant went home after the meeting.

The respondent said that it informed the complainant on Friday 19 May 2017 to report to work at 9pm in Area 1 and in return it received an email stating that “[due to] the company’s failure to accommodate a move for me to another area I am unable to attend work today as scheduled.” The respondent said that by email dated 22 May 2017 it said that it could not guarantee that the employee would never be required to work in Area 1 or other areas. The complainant resigned three days later.

The company’s position is that no discrimination has taken place under any provision of the Employment Equality Acts, and that the situation was in essence of the complainant’s own making, by the way she presented her medical information on joining the organisation. There was a lack of full and proper disclosure from the complainant in her pre-employment medical. In the pre-employment medical process, she failed to disclose her medical condition, and misled the company as to the reason for her medication, citing ‘anti-depression’ as against ‘anxiety and panic attacks’.

The respondent said that the complaint is based on the assertion that the respondent was forcing her to work in a confined space known as Area 1. The respondent said that Area 1 is not a confined space. It has the same characteristics as the rest of the Manufacturing Plant, and is far superior to the environment to be found in many factories. The respondent said that the HSA defines a confined space as “any place, including any vessel, tank, container, vat, silo, hopper, pit, bund, trench, pipe, sewer, flue, well, chamber, compartment, cellar or other similar space …” The respondent said that Area 1 is a fine open area.

The respondent said that the account of matters as set out in the complainant’s submission reveals that anxiety and panic attacks, which were never properly disclosed to the company, caused the complainant’s reaction, perhaps as a side effect of her medication, and that her reaction was in no way connected with the objective reality of the environment.

The respondent said that the complainant’s condition, as now disclosed, represents a Health and Safety risk to herself and others in an environment with machinery. It claims that there was “no dismissal, or constructive dismissal, and that the resignation was the decision of the complainant”.

The respondent submits that the situation was of the complainant’s making, and arose from her own conduct in the way she handled her medical information. The respondent also said that “all of the symptoms reported are listed as side effects of her medication.”

The respondent said that there are no grounds for, and no credibility attaching to, an assertion by the complainant that she “could work in any other area without any particular difficulty it is simply the enclosed space in Area 1 which causes me difficulty”.

In summary, the respondent’s case is that,

• Area 1 is not a confined space.

• During the complainant’s pre-employment medical three months before her resignation, she withheld information central to the matters now under consideration.

• In order for the company to be able to manage its business and to fulfil its obligations under legislation there is a necessity for employees and candidates for employment to act in good faith and make full and proper disclosure. This did not happen.

• No employer can be expected to make accommodations in respect of a condition whose full nature and implications were not disclosed, and in respect of which information was withheld.

There is repeated emphasis in the complainant’s submission on “anxiety and panic attacks”, however, there was no proper disclosure of this to the company. The complainant did mention Venex medication, which is prescribed for depression, but also for anxiety disorders.

The Law

Section 2(1) of the Acts defines ‘dismissal’ as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract, without giving such notice, or it was or would have been reasonable for the employee to do so .... ".

I note in the case of An Employer -v- A Worker (Mr. O No. 2)[ EED410 ] the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation, where it held that: “There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation, but is so unreasonable as to justify the employee in resigning there and then.”

I also take note of the Labour Court where it held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of John Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Section 6 (2)(g) of the Act states

6.— (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2)(in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Section 8 of the Act in relevant part states

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

[…]

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Section 16 of the Employment Equality Act 1998, as amended, provides as follows:

“(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

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

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

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

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

(3)

(a) For the purposes of this section, a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if, the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer.

(b) An employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

i. To have access to employment

ii. To participate and advance in employment,

iii. To undergo training,

Unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of –

(i) The financial and other costs entailed.

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

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

(4) In subsection (3)—

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

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

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

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

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

(a) means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;”

I further note in Council Directive 2000/78/EC of the 27 November 2000, where Article 5 states as follows:

“Reasonable accommodation for disabled persons

In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

Therefore, it is very clear that the Directive and the Employment Equality Acts does not require the recruitment or maintenance in employment of an individual who is not competent, capable and/or available to perform the essential functions of the post, without prejudice to the obligation to provide reasonable accommodation for people with disabilities. In relation to “appropriate measures” again it is clear that the employer should provide practical measures to someway adapt the complainant’s workplace to their disability, for example adapting premises or its programmes or the distribution of tasks, where possible.

The Directive also attempts to deal with the question in regard to disproportionate burden, where account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.

I note in A Health and Fitness Club and A Worker [EED037] where the Court set out the procedure to be followed in determining whether and to what extent, an employer can rely on section 16 of the Act. It stated.

“This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.” (my emphasis added)

Section 16 of the Act and the procedure adopted by the Labour Court in the Health and Fitness Club and A Worker case was commented upon by Noonan J in Nano Nagle School v Daly [2015] IEHC 785 where it states,

“59. At first blush, a literal interpretation of s.16 (1) (b) considered on its own appears to support the position adopted, initially at least, by the school. However, when read in conjunction with s. 16 (3) and (4) insofar as they apply to this case, it is clear that a person with a disability is, for the purposes of the Act, to be regarded as fully competent to undertake and fully capable of undertaking the duties of a given job if such person would be so competent and capable on the distribution of tasks associated with that job being adapted by the employer. As held by the CJEU in Ring, the adaptation of patterns of working time must include the elimination of some of that working time, subject always to the caveat that the measures must not impose a disproportionate burden on the employer. The adaptation of the distribution of tasks must also where appropriate include the elimination of tasks since otherwise the section would fail to achieve the objective for which the legislation was enacted.

60. In considering Ring, the Labour Court concluded that by parity of reasoning it is also for the national court to assess if a redistribution of tasks represents a disproportionate burden on the facts of a particular case in which that question arises. I can find no fault with that logic. The adaptation of the distribution of tasks must in an appropriate case include a consideration of whether a reduction of those tasks may be necessary in order to comply with s. 16. Indeed, the school has acknowledged as much in conceding that it may be necessary to strip out some peripheral tasks from the job. Of course, whether, and to what extent, a reduction in tasks is required to comply with s. 16 must necessarily depend on the facts of each case. It may or may not be relevant to consider whether a point is reached when the appropriate measures transform the job into something entirely different from that which originally existed. Some of the English authorities appear to go as far as suggesting that under the equivalent, and admittedly different, English legislation which pre-dates the Directive, the requirement to reasonably accommodate a disabled employee may extend to transferring him or her to an entirely different position within the same organisation – see Archibald v. Fife Council [2004] UKHL 32 and Chief Constable of South Yorkshire Police v. Jelic [2010] IRLR 774.

61. While the school in its submissions criticises what it submits are various errors of law in the Labour Court’s interpretation of the national and European case law, even if same were made, which I do not determine, these do not appear to me to undermine the ultimate outcome. The fundamental determination of the Labour Court here was that the school failed to engage with its duty to consider whether or not Ms. Daly could reasonably be accommodated by the implementation of appropriate measures. The Labour Court did not conclude that Ms. Daly could be so accommodated but rather it was the failure to even consider a redistribution of her tasks as a SNA that rendered the school in breach of s. 16. It seems to me that on the evidence, the Labour Court was perfectly entitled to reach the conclusion that there had been no adequate consideration or evaluation of these issues by the school and a phone call to the NCSE about funding, the content of which was never precisely determined, was an insufficient effort on the part of the school to comply with its statutory obligation.

62. These are all conclusions which in my view were open to the Labour Court on the evidence and it could not in any realistic sense be suggested that these were irrational or based on an erroneous interpretation of the law.” (my emphasis added)

On a practical basis, Section 16 of the Acts as interpreted in the case of A Health and Fitness Club -v- A Worker [EED037] and as upheld by the Circuit Court (Humphreys   –v- Westwood Fitness Club), 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. 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”.

In the case of A School –v- A Worker [EDA1430] 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.”

Conclusions

Discriminatory Constructive Dismissal

The first issue that I must decide relates to the complainant’s claim that she was subjected to a discriminatory constructive dismissal on the grounds of her disability. Based on the evidence and submissions of the parties, I have noted that, the complainant advised the hearing that she had indicated on her medical assessment form that she was taking various medication, but that there was no place on the form to indicate her “anxiety and panic attacks”.  The complainant said that from a very early stage she had indicated that she could not work in the confined conditions of Area 1, that she had disclosed that she had a disability and working in Area 1 was having a direct adverse effect on her health. I note that she had discussions and a meeting with the respondent in the company of her Trade Union official in particular on 18 May to discuss those very issues.

The respondent does not dispute that the complainant has a disability. However, the respondent made it clear that the complainant failed to disclose that she has anxiety and panic attacks - her disability - at the outset. The respondent noted that this placed it in a very precarious position as to her own safety and that of others whilst operating machinery within the Plant. The respondent said that it carefully listened to her, it highlighted that there was little to no difference between Area 1 and Area 6 and that flexibility and interchangeability were required of everyone while working there. It looked at alternatives i.e. allowing her work in Area 6 on her first weekend, when she was feeling poorly, and looking at other solutions and different lines within Area 1 during these meetings.

I note that the catalysts for bringing this working relationship to an end can be traced back to the text message to the complainant on 19 May informing her to report into work in Area 1. That text followed a serious of discussions and the meeting of the 18 May where the complainant had clearly set out that her disability was impacting on her working arrangements in Area 1. I note that the exchange of emails that followed from the complainant that evening and her subsequent email to Ms. B setting out in clear and uncertain terms that she felt that as no alternative than to working in Area 1 was given and because of the health implication that is caused upon her she would “have no option but to deem [her] position with the Company untenable”. I note the confirmation from the respondent that it could not offer her that guarantee and so the complainant resigned her position some three days later.

Taking this step by step it is common case that the complainant has a disability within the meaning of the Act, that has not been contested. I am satisfied that Anxiety may result in Panic Attacks and these symptoms can be severe and disabling. I find that due to the broad wording of section 2(1) of the Acts that Anxiety comes within the wording of section 2 (3) and that it constitutes a disability for the purpose of the Act. Likewise, I am satisfied that she has failed to fully disclose that disability in a clear and certain manner when she joined the respondent back in February 2017. She claims that her Anxiety and Panic Attacks were set off when she was asked to move from Area 6 and work in Area 1 in early May. I am satisfied that she informed her employers of her difficulties from that point. I am satisfied that those in contact with her at the time, managers, trainers and nurse were sympathetic towards her and immediate short-term solutions were explored. That has to be acknowledged. As noted above the complainant was asked to report into work in Area 1 for 19 May and she emailed the respondent seeking assurances not to have to work there. After failing to get assurances that she was exempt from working in Area 1, she somewhat quickly thereafter if not immediately reacted by resigning.

In relation to the question of discriminatorily constructive dismissal, I need to give very careful consideration to the well-established tests that require examination in such cases. It is well established that in advancing a claim for constructive dismissal an employee is required to show that she had no option in the circumstances of her employment other than to terminate her employment. The notion places a very high burden of proof on an employee to demonstrate that she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with her employers.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of John Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the respondent had an established Grievance and Disciplinary Procedure in place which generally conforms to the principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

To address the issue as to whether the complainant acted reasonably by resigning prior to invoking a formal grievance through the respondent’s established internal grievance procedures, I noted above it has been established that the complainant’s failure to invoke the formal grievance prior to their resignation, can be deemed fatal to a claim of constructive dismissal. However, it is equally well established that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Liz Allen -v- Independent Newspaper [2002] 13 ELR 84, and Moy -v- Moog Ltd [2002] 13 ELR 261).  

The question which I must decide in the present case is whether, because of the conduct of the respondent, the complainant was entitled to terminate her contract of employment.

The complainant claims that she was discriminatorily constructively dismissed due to the manner in which the respondent failed to provide her with reasonable accommodation with regard to working in Area 1. The complainant contends that the respondent’s behaviour was therefore so unreasonable that she was left with little choice other than to resign. The respondent denies the claim of discriminatory constructive dismissal and contends that the company acted appropriately at all times.

I note that the complainant has not raised a formal grievance under the internal grievance procedures. I am satisfied that there are no reasonable grounds presented to me which, in the exceptional circumstances of this case, excuse the complainant’s failure to fully exhaust the internal grievance procedures before resigning. In coming to this conclusion, I note that it was not in dispute that the complainant was in a dialog with the respondent at the time but never formally engaged a formal grievance with her employer. It is clear she sought assurances about her work from her employer and failed to get them and within a matter of three days had resigned. Her reaction to the email from Ms. B was terminal and thus removing the possibility to fully explore the possible alternatives and internal mechanisms available to her with her employer. I find this was a critical decision. I find that there must be factors, which are exceptional and could excuse the complainant’s failure to raise a formal grievance under the internal grievance procedures before resigning. I find there was none presented to me. I find that the complainant was not discriminatorily constructively dismissed by the respondent contrary to Section 8 of the Acts. Therefore, I find against the complainant in this element of the complaint.  

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.

I note the contents of the meetings and discussions that were had between the parties. I have heard from the witnesses and read the various extracts and minutes from the meetings. On consideration it is clear that the complainant had indicated that she had a difficulty in moving to work in Area 1 when all her fellow trainees were in Area 6 and she wanted to work there. It is clear when she introduced the possibility that her disability could have implications on her working in Area 1, that the respondent was left with profound questions that required addressing, namely, if as it claims, that Area 1 and Area 6 are near identical in makeup - except that Area 1 is older and smaller, the complainant claims that her condition is worsened by her working in Area 1, should she have been medically assessed and would any reasonable accommodation facilitate her in its workplace or whether her recently disclosed disability cannot be accommodated in Area 1 or within the organisation at all as per Section 16(3). I am satisfied that once she reported this set of circumstances to the respondent, it had an obligation to consider if it needs to medically assess her, before making any decisions about her employment arrangements. However, it failed to address that at all and maintained the stance that there is an unconditional qualified need that all staff to be interchangeable.

The key matter for me is the question of the degree to which Section 16 of the Act imposed obligations on the respondent to make an informed decision about the likely capacity or incapacity of the complainant to perform the work for which she was employed or whether, if reasonable accommodation was given to her, she would be capable of undertaking the essential duties of her position. These principles were outlined above in the likes of A Health and Fitness Club and A Worker andNano Nagle School v Daly. I find that the respondent did make efforts initially to accommodate the complainant on the first few weeks but it appeared to take a stance that the complainant was actually trying to dictate where she wanted to work thereafter. Having heard all the evidence from all the witnesses I must suggest that may be the case. However, there still is a fundamental requirement for the respondent to recognise that the complainant has brought to its attention her disability and the effects working in Area 1 is having on her, a person with a disability, and then to take a proactive approach when dealing with the complainant to adequately discharge the duties imposed upon it by the Act at Section 16.

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.

Having regard to the totality of the evidence adduced, I am not satisfied that the respondent complied with its obligation to adopt a process orientated approach and that it fully engaged with the complainant. I find that the respondent was not fully informed and not in full possession of all the material facts regarding the complainant’s medical condition when the decision was taken to ensure that she remained working within Area 1 when she had on numerous times reported a difficulty working there rather than looking at the situation before it carefully prior to the complainant having to resign.

As I have already stated in my findings above, I am satisfied that the respondent was not fully informed and in full possession of all the material facts regarding the complainant’s medical condition throughout the period while she insisted that she had difficulty in Area 1 and no difficulty in Area 6. I am satisfied that the respondent was in regular contact with the complainant throughout this period up until the 19 May 2017 when she was asked to report to work in Area 1.

It is clear from the evidence adduced that the complainant was claiming that she was not fit to return to work in Area 1 given the nature of her medical condition, but that she could work elsewhere. She had offered to support her case with medical evidence but it is clear that no medical reports were sought, requested or available to the respondent when it told the complainant that she should report to Area 1 and it could not guarantee her that she would not have to work there going into the future. I note the respondent feels that Area 1 and Area 6 are of an equally high standard and provided photo evidence to demonstrate that. Notwithstanding, I find that the respondent, while on notice of the complainant’s disability, did not possess a working knowledge of how to deal with the situation that was unfolding before it, or indeed the full concept of reasonable accommodation in its workplace. Accordingly, I find that the respondent did fail in its obligation to provide the complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

I have concluded my investigation and I find that:

(i)       The respondent did not discriminate against the complainant on the disability ground pursuant to sections 6(2)(a) of the Acts, in respect of discriminatory constructive dismissal contrary to Section 8 of the Acts,

and

(ii)    The respondent did fail in its obligation to provide the complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

In accordance with Section 82 of the Act, and having taken all of the relevant factors and evidence into account, I order the respondent to pay the complainant €6,000 (six thousand euro) in compensation.

I also order the respondent to complete a full review of its Equality /Diversity Policies within the company within three months from the date of this decision and provide refresher training to all first line managers and supervisors within five months from the date of this decision.

Employment Equality Acts - Discriminatory Constructive Dismissal - Reasonable Accommodation