Complainant

Respondent

Anonymised Parties

 A Clerical Worker

A County Council

Representatives

ShayClintonof Fórsa Trade Union

 Keith Irvine of LGMA

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-00026246-001

13/02/2019

The issues in contention concern a Temporary Clerical officer who alleges Discrimination by a County Council on the grounds of Disability and Failure to Provide Reasonable Accommodation.

The Complainant commenced employment on the 31^st May 2018 as a Temporary Clerical officer to do a maternity cover.  On the 1^st June 2018 the Complainant fell at large fire doors in the Respondent Offices. She was assisted by staff members and taken home. She was asked to attend her GP and she returned to work on the 6^th June. Detailed Medical evidence was provided to the Respondent concerning an underlying condition that may have been impacting on the Complainant. On the 3^rd August the Respondent met with her to discuss her medical situation. She was told that the Respondent would be asking her to attend the Council Medical Advisor on the 10^th August 2018. Unfortunately, she fell and cut her head on the 8^th August. The Council Doctor declared her unfit for w

ork and recommended a referral to the Specialist Medmark clinic. This took place some 7 to 8 weeks later the 12^th November. The Medmark report also declared her unfit for work but with detailed commentary stating that she was not to be considered totally unfit and with suitable accommodations she could possibly return. It was recognised that the duration of her contract was quite short and that it was probably unlikely anything could be done in the short time involved.

The Complainant’s contract was renewed on the 5^th December 2018 until the 3^rd February 2019 when it was deemed to have expired due to the return of the original Officer from maternity leave.

The Complainant strongly argued that once the Respondent became aware of the medical situation of the Complainant in mid-June reasonable steps should have been taken to accommodate her.

This was more apparent following the general meeting of the 3^rd August 2019. It was obvious that the Council were dragging their heels and doing nothing to assist the Complainant. The long delay in the Medmark appointment to the 12^th November was symptomatic of this tardy approach. Following the Medmark report there still was time to at least engage in discussions with the Complainant to see how best to facilitate her- change her job, remove the need to pass through heavy fire doors etc. Nothing happened and while the Employment Contract was extended to the 3^rd February this was an empty gesture largely for the sake of appearances. No real effort was made to facilitate the Complainant.

In the Council in question there is a well-established practice of extending temporary Contracts and in any other circumstances the contract would have been extended. An Agency worker recruited shortly after the Complainant was still in employment well after the Complainants departure. This, effective exclusion from expected employment, was further discriminatory treatment.

In summary the Complainant maintained that she was the victim of Disability Discrimination due to not being afforded reasonable accommodation and being denied a generally accepted custom and practice roll over of the contract.

The Complainant cited extensive case law in support of her position.

The Respondent recruited the Complainant via a Public Services Appointments panel in May 2018. There was no indication on the PAC forms of any disability save for an “Atrophy of the right hand” which was not deemed to be any impairment in work capacity. The Complainant had extensive clerical officer experience in the years before.

There was nothing amiss until the first fall on the 1^st of June when it was obvious that the Complainant had mobility issues and in particular difficulties with heavy doors and manually keyed door access passwords. This fall lead to the Council requesting Medical information and an extensive body of material was provided from the Complainant in mid to late June. This was considered at the meeting on the 3^rd August.

On the work front nothing further amiss happened from early June until the Complainant had a serious fall on the 8^th August 2018. The Respondent had already referred her, post the 3^rd August meeting, to their Occupational Health Doctor and later onwards to the Medmark facility. The Respondent Local doctor had deemed the Complainant unfit for work.

The Respondent both in written submissions and in their Oral evidence stated clearly that they were at all times very concerned for the Complainants physical wellbeing. They had been alarmed at the falls on level ground and felt that their best duty of Care to the Complainant and to their general Health & Safety obligations as an Employer, was to have the Complainant on Sick leave at home. All reasonable aspects of Accommodation were considered but in reality, it would have required a Special Needs Assistant, to use an educational parlance, to be with the Complainant at all times due to the likely propensity to have serious falls. This was simply not a practical option.

Other issue such as moving locations to other floors were considered and going to the Reception desk but all had the same propensity to fall /mobility problems and could not be considered.

As regards the job roll over issue the Complainant was engaged on a Maternity Cover and when this ended her job period expired naturally. The question of the Maternity returnee coming back on three days was not relevant as the other two days per week were absorbed by the Council. The two days in question were never an option for the Complainant irrespective of her situation. In any event the Respondent Council ran a Permanent Clerical Officer Panel competition in March/April of 2019. All temporary appointments would have been overtaken by this new Panel. The Complainant did not apply for this Panel.

There was no Discrimination on Disability Grounds and the question of Reasonable Accommodation while well researched by the Respondent was in effect impossible.

The Respondent referenced Legal precedents, specifically the Nano Nagle case, to support the latter point. A Reasonable Accommodation must be “reasonable and proportionate” and regrettably in this case this was not possible.

3:1       The Relevant Law and Legal precedents.

The relevant law in this case is the Employment Equality Act, 1998 an in particular Section 16 thereof with all overseen by the Disability Directive specifically Article 5 of the Directive - EC 2000/78.

It is also necessary to note that in a Disability Discrimination case the initial Burden of Proof rests with the Complainant – In evaluating any evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to S. 85A of the Acts. 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.

However, the legal principles must be seen against the details of the specific case in hand and the key questions it raises.

These were, in my view, the following

1.       Had the Complainant a qualifying disability? Is there a prima facie case ?

2.       Did the Respondent take all proper steps to take this Disability on board by means of “Reasonable Accommodation”? Section 16 (2) refers.

3.       Has the Respondent a reasonable rebuttal argument in regard to any perceived failure in the reasonable accommodation question? Section 16 (1) and (3).

4.       In terms of Consultation and Inquiry did the Respondent take all reasonable steps to become fully aware of the Complainants circumstances prior to any actions?

5.       How does the present case sit with extensive Legal precedent/ case law -the landmark Humphries v Westwood Fitness, (2004) ELR 296 and the Nagle Court of Appeal Decision in Nano Nagle Centre v Marie Daly [2016] no 67 with follow on Legal developments in this case being most pertinent.

3:1:1        

Qualifying Disability? Prima Facie case?

Without any doubt all the Medical evidence was crystal clear on this point. The Complainant had a Disability to satisfy the requirements of the Employment Equality Act,1998. I was also satisfied, from the evidence , that there was a prima facie case.

3:1:2      Reasonable Accommodation / Provision of, Respondent Arguments / Rebuttal of need for

This was a most difficult case. The Respondent employer took the Complainant in good faith from the Public Appointments service. There was no suggestion of anything out of the ordinary beforehand and even if so the Respondent has clear policies to accommodate employees with a Disability.

It was only when the Complainant was in employment that the disability question arose – the first fall on the 1^st June -day one of employment , alarmed the Respondent. Medical inquiries were instituted, and the Complainant provided full details. The Respondent Senior Personnel Executive, Mr. Xa who gave evidence, at the Oral hearing was clearly genuinely concerned, as were a number of staff who witnessed the fall, on a human level. The Complainant was also, from her evidence, genuinely distressed.  From the Oral hearing it was obvious that she was a lady of considerable fortitude facing a situation of considerable and most serious medical uncertainty.

The meeting of the 3^rd August then became crucial and from the notes supplied it was clear that the Respondent was considering what steps to take. The view of the Respondent Doctor was being arranged. The Complainant was still at work during this period.

However, the Situation took a dramatic turn for the worse with second major fall on the 8^th August.

From the oral evidence there could be no doubt but that the Respondent was seriously alarmed by this fall involving as it did lacerations to the head and skin bleeding. Again, from oral evidence it was clear that the Complainant was equally upset at this fall.

The Complainant was then declared Sick by the Respondent Doctor and the Medmark process set in train. The Complainant never returned to work.

The evidence pointed to the fact that the Respondent had been carefully considering the situation of the Complainant -pre the fall of the 8^th August but was effectively so alarmed by the fall that having the Complainant on sick leave was seen as the best course of action. It was also clear to me that this degree of concern for the Complainant and the Health and Safety responsibilities of Organisation was to colour later considerations of Reasonable Accommodation.

The main Rebuttal argument for the Respondent and possibly explaining their reluctance on Reasonable Accommodation was that the Complainant had a serious and deteriorating medical condition with a possibly quite pessimistic long-term prognosis. The actual point of having discussions with the Complainant, when her contract would soon be up, was a pertinent question.

In the Nano Nagle case referred to above, Justice Finlay Keoghan in the supporting decision interpreted the obligations imposed by Section 16 of the Employment Equality Act:

In relation to a position/job is to consider appropriate measures including a redistribution of tasks associated with one or more duties attached to the position such that it enables a disabled person be fully competent or capable of undertaking the duties attached to the post. However, it does not extend to considering the removal from a position a duty which may properly be considered a main duty or essential function of the position by the redistribution of all tasks.  (Adjudicator underlining)

The Respondent argument was essentially that what was actually required in this case was the engagement of a Special Needs Assistant to accompany the Complainant at all times -the issue of physical falling being crucial in their mind and the practical impossibility of radically redesigning the job, in such a short time frame , to facilitate the Complainant.

I accepted that these were very valid Respondent arguments but unfortunately for the Respondent case were the basis of decisions made without proper consultation with Complainant. The Humphries v Westwood fitness case referred to above absolutely emphasises the need for complete consultations with Complainant especially where a medical issue is in play.

3:1:3       Consultations /Legal precedents

A question for the Respondent here is why it took so long, until November 12^th, to get the Medmark appointment. I could not see a satisfactory answer to this point.

In addition, the question also arose here as to why the Respondent, on receipt of the Medmark report not the 21^st November did not immediately seek to have discussions with Complainant and or her advisors to consider the Report and its implications.

All Legal precedents are strong on this consultation / information gathering point.

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 referred to above.

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.

In this case it was not in the Respondent’s favour that little or no communication was engaged in with Complainant during the December/January period regarding what Reasonable Accommodation might conceivably have been made. The fact that the Complainant was on a short-term appointment is not a reasonable defence.

3:2      Adjudicator Conclusions

Having considered all the evidence both Written and especially Oral in this case I came to the following conclusions.

I did not accept the argument that the Complainant was, by custom and practice, entitled or had a very high probability of a “roll over contract” or had an entitlement to the two days per week not being taken up by the Returning Staff member. The filling of vacancies, either full time or for two days per week, is a management function and not compromised by any details of this case.

Regarding Discrimination there was no ill will or predisposition to Discriminate on the part of the Respondent employer. They always acted in good faith and concern for the Complainant. It is worth noting that the Respondent extended the Complainant’s contract in December even though the Complainant was ,at this stage , on sick leave for some considerable time.

Good will not withstanding the Respondent had a number of procedural lapses. These being in my view the unusual delay in setting up the Medmark review and most crucially not involving the Complainant in any discussion or considerations post Medmark. The discussions might well have amounted to very little but the Complainant was entitled to have her view heard on how a Reasonable Accommodation might have been arranged.

However, in view of the oral evidence I had to find that this lapse was at the lesser end of the Discrimination scale.

Nonetheless, I find that there was failure to fully consider fully Reasonable Accommodation by direct interaction post the Medmark report in November / December.

As a result, the case for Reasonable Accommodation is found, technically, in the Complainant’s favour.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for detailed reasoning.

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

CA-00026246-001

Complaint of Failure to provide Reasonable Accommodation is deemed to be well founded on largely procedural grounds. Compensation of €1,000 is awarded.