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-00008979-001

05/01/2017

The Complainant commenced his employment with the Respondent in 2005 as a cleaning operative. The Complainant submits that he was discriminated against by reason of his disability. The Complainant claims that the Respondent treated him unlawfully by discriminating against him in failing to give him reasonable accommodation, victimising him and in his conditions of employment.

The claims in relation to victimisation and conditions of employment were withdrawn at the hearing. The claim, as presented at the hearing is that the Respondent has discriminated against the Complainant by failing to provide reasonable accommodation for his disability.

The Respondent rejects the claim.

Due to the sensitivities surrounding the details of this case I am exercising my discretion to anonymise this decision.

SIPTU on behalf of the Complainant submits that the Complainant started his employment with the Respondent in 2005 as a cleaning operative. SIPTU submits that the Complainant’s employment was uneventful from an industrial relations perspective up to the latter part of 2012. At that point the Respondent company began to raise issues in respect of the Complainant’s performance. During that period the Respondent indicated that it was going to reduce the Complainant’s working hours. The Respondent proceeded to utilise the Respondent’s disciplinary process to deal with its concerns ultimately leading to the imposition of a final written warning in the Complainant’s file on 15th August 2013.

SIPTU submits that, while on company business on 3rd October 2013, the Complainant was involved in a road traffic accident which resulted in him being certified absent from work due to the injuries sustained. From October 2013 to July 2014 the Complainant’s attendance at work was intermittent due to both medical certification and the fact that the company had put him on short time. SIPTU submits that the working arrangements that had been put in place meant that the Complainant did not know from one day to the next if work was available for him.

In late July 2014 the Complainant was certified off work by his GP suffering from work related stress. The Complainant remains off work to present day.

SIPTU submits that in the intervening period there have been a number of engagements between the Respondent and the union in an effort to resolve the situation. In the context of these discussions the union requested the Respondent to undertake a full review of the business to identify a suitable position that would allow the Complainant return to duty. SIPTU submits that the Respondent replied by seeking clarification as to what work the Complainant could undertake. The union pointed out that that particular exercise would be impossible to undertake unless the Respondent provided the union with details of the Respondent’s contracts. This information was requested at meetings on 20th March 2016 and 22nd June 2016. The requested review was not undertaken nor was the requested information provided to the union. SIPTU submits that in further efforts to reconcile the difficulties the union participated in an unsuccessful grievance process. The union also suggested to the Respondent, given the ongoing situation that it could consider some form of termination agreement that would bring the Complainant’s employment to an agreed end. SIPTU submits that this proposal was rejected as was the suggestion by the union of seeking assistance of the Advisory Service of the WRC.

SIPTU submits that that the union clearly articulated that the Respondent was simply managing the Complainant’s departure from the Respondent company through retirement in February 2018 when the Complainant reaches the Respondent’s normal retirement age.

SIPTU submits that the Complainant has been diagnosed with chronic adjustment disorder with moderate depression, conditions that are being treated by ongoing psychiatric care and medication. SIPTU contends the Complainant meets the definition of a person with a disability. In that regard SIPTU cited Thomas Keogh v Tom Moloney Ltd. EDA1617 where the Labour Court accepted that the existence of a psychiatric condition meets the definition of disability.

SIPTU submits that the Respondent is on notice that the Complainant is currently suffering from depression. The Respondent have received confirmation of same from both the Complainant’s medical advisors and its own occupational specialists and is aware of the nature and extent of the condition. It has been brought to the attention of the Respondent that the union considers the Complainant to be a person with a disability. SIPTU submits that the Respondent sought confirmation of the existence of a disability in correspondence dated 25th August 2015 issued to the Complainant’s doctor.

SIPTU submits that given the Complainant’s condition the Respondent had an obligation to consider the full application of Section 16 of the Acts in reasonably accommodating the Complainant’s disability in the context of facilitating his return to work, the Respondent has failed to discharge that obligation.

SIPTU argues that the Complainant has sought to return to work with the Respondent on the basis of the Respondent providing a reasonable accommodation for his disability. SIPTU claims that these efforts have been completely frustrated by the Respondent. SIPTU submits that it is aware that the Respondent has a clear defence to providing reasonable accommodation under Section 16(1) of the Acts. However, SIPTU argues that Section 16(1) does not provide a full defence in respect of failing to provide reasonable accommodation to a worker suffering with a disability. SIPTU argues that the interpretation of the Acts by both the Labour Court and the High Court requires that an employer must take into consideration all available options when considering the provision of reasonable accommodation.

SIPTU cited EDA1430 Marie Daly v Nano Nagle, which was upheld by the High Court. SIPTU conceded at the hearing that the decision was subsequently overturned by the Court of Appeal.

SIPTU cited also EDA1629 A Store v A Worker where the Labour Court upheld a complaint of discriminatory treatment and said,

“In the circumstance the Court is not satisfied that the respondent gave adequate consideration to what if any, adjustments could be made in respect of the complainant’s work requirements. Therefore, the Court finds that the respondent failed to discharge its obligations under section 16 of the Act, as

SIPTU seeks the maximum available award of compensation of 2 years pay.

The Respondent is a contract cleaning company. The Respondent submits that the Complainant commenced his employment with the Respondent on 29th September 2005. At all times the Complainant’s job title was that of “Cleaning Operative (Project Work)”.

The Respondent submits that on 3rd October 2013, the Complainant was involved in a road traffic accident. Thereafter, the Complainant was medically unfit for work at various intervals.

The Complainant commenced a period of long terms sick leave from 28th July 2014 to present date. The reason for this absence was said to be “work related stress”.

On 31st July 2014, the Respondent invited the Complainant to a welfare meeting in order to determine “what arrangements we might need to make to ensure your safety upon your return” amongst other items. On 7th August the Complainant’s representative responded advising that “[The Complainant] does not want to brush this particular issue under the carpet by holding informal meeting, he very much wants to have a formal meeting with the company when he is fit to return to work”.

The Respondent submits that following a further six months of certified sick leave on the basis of “work related stress”, the Respondent again invited the Complainant to a welfare meeting on 4th February 2015. By return correspondence the Complainant’s representative referred to alleged bullying behaviour on the part of Respondent.

On 4th March 2015, the Respondent clarified the position regarding its obligation to enquire as to the wellbeing of its employee. In the course of the correspondence, the Respondent also suggested that the Complainant utilise the internal procedures to address his concerns. The Respondent submits that, again, the bullying prevention and grievance policies were issued to the Complainant on 6th March 2015.

The Respondent submits that following a further four months of certified sick leave, the Complainant was again invited to a welfare meeting on 21st July 2015. Again, by response the Complainant advised that these invites serve to further exasperate his illness.

The Respondent submits that on 7th August 2015, the Respondent sought the Complainant’s consent to request a medical report in relation to the state of his health. The purpose of this report was to determine whether “there are any reasonable adjustments we may be able to make that would assist you in returning to work”. The Respondent claims that, following receipt of same, the Respondent corresponded with the Complainant’s doctor requesting details as to when he might be in a position to return to work and further to advise of “any appropriate measures that we could reasonably take to facilitate a return to work”. This correspondence goes on to directly ask the Complainant’s doctor,

“Are there any reasonable adjustments we could make to accommodate any disability or facilitate a return to work? If we were to make those adjustments, when could (he) return to work?”

The Respondent submits that on 23rd October 2015, the Complainant’s doctor issued a report advising that “[the Complainant] would like to return to work. I feel his medical problems need to be considered here, in planning a return to work. I feel he should meet with management and I would advise that he be accompanied as this would be very stressful for him”.

The Respondent submits that on 25th January 2016, the Respondent advised that they would be willing to meet with the Complainant and his representative and requested details as to dates on which the parties would be available.

The Respondent further submits that in May of 2016, the Respondent sought two further medical assessments in relation to the Complainant’s health. Both the reports from his GP and Medmark indicated that the Complainant was suffering from depressive illness and remained unfit for work, with the Medmark report stating that “[the Complainant] personally expresses some doubt of long-term ability to return to work with [the Respondent], due to his expressed difficulties at work.” The Respondent maintains that, following receipt of same, the Respondent invited the Complainant to a medical capability meeting for 22nd June 2016. The purpose of this meeting was to discuss “whether there are any reasonable adjustments that can be made to your job or in the workplace that would facilitate a return to work” and “whether there is any alternative employment available that would be suitable for you”.

The Respondent submits that at the outset of the meeting, the Respondent asked the Complainant what adjustments could be made to the Complainant’s role to facilitate his return to work. When the Complainant’s representative replied that they were unable to make a judgement to this until they were informed of other work available to the Complainant Ms R of the Respondent replied that “in terms of general other work available we don’t at this time currently have any other work available”. Ms R went on to state we don’t have any janitor work available, we don’t have any cleaning or site work available … but if it was made clear to us what type of work [the Complainant] would feel comfortable in undertaking we would see what was then available for him”.

The Respondent submits that following this conversation, the Complainant’s representative suggested that the Respondent make the Complainant redundant as a method of resolving the issue. Given that no redundancy situation existed at the time, the Respondent did not accept this offer. The Respondent submits that, towards the end of the meeting, Ms R suggested that if difficulties at work are giving raise to the Complainant’s difficulties, he should utilise the grievance procedure in relation to the same as previously advised. At the end of the meeting the Complainant’s representative stated that “we’re not adverse at this moment in time to some amicable arrangement with the company in relation to an agreed exit package and that would be our preferred option”.

The Respondent submits that, following a series of correspondence in relation to the issue, a grievance meeting was arranged between the parties for 24th November 2016. A full outcome of same was issued on 10th January 2017. While the Complainant was offered the right to appeal the finding of this grievance report, he declined on the basis that he believed that “it would be an exercise in futility to the point that your deliberations have absolutely no grounding in fact”. The Respondent claims that, at that point, the Complainant indicated that his preferred method of resolution would be to refer the matter to the WRC.

The Respondent submits that in May 2017, the Respondent sought another medical report regarding the Complainant’s fitness for work and any accommodations that may be made to facilitate the same. The medical report, when issued, stated that,

In my opinion, [the Complainant] is unlikely to be fit to alternate duties at present…”

and

“I expect that [the Complainant] is likely to remain unfit to return to work for at least 6 months. I understand that [the Complainant] would be due to retire in February 2018 and I feel that the likelihood of his being able to return to full normal duties in his normal role before that point is very low. It is possible that he will remain unfit to return to work indefinitely.”

Following this report, a meeting was arranged between the parties for 23rd June 2017. In the course of this meeting, the Respondent offered the Complainant the role of a part-time delivery driver as a form of alternative work. The Respondent submits that this was a new role created and offered to the Complainant to accommodate his return to work. By response the Complainant again requested that he be made redundant as a method of resolving the issues between the parties.

The Respondent submits that on 25th July 2017, the Respondent again wrote to the Complainant’s personal doctor to determine whether any accommodations might be made to facilitate his return to work. The request for this report specifically refers to the Complainant’s ability to drive a company vehicle and lift boxes of chemicals, both of which would be required for the delivery driver position, which was still open to the Complainant at that time. The report, when received on 14th August 2017, stated that the Complainant “has ongoing symptoms, is still attending a Psychiatrist, and is not fit for work. I cannot offer a return to work date at present.”

The Respondent submits that, following this report the Respondent advised that in light of the fact that no information was forthcoming in relation to a reasonable accommodation for the Complainant, the Respondent could not “make a decision on the continued employment with the Company and [the Complainant] will have to remain on sick leave until he will be able to return to work or until we receive further information on possible accommodation.”

The Respondent argues that the Respondent has sought all possible medical information regarding the Complainant’s state of health and the accommodations that could be reached for him. This has included seeking several medical reports, and a second opinion, from various medical practitioners. None of these medical reports demonstrate any reasonable accommodation that might be reached to facilitate the Complainant’s return to work. The Respondent submits that it has gone as far as to offer the Complainant a role that was specially created so as to accommodate him. Furthermore, the Respondent argues that it has attempted to convene numerous meetings with the Complainant in relation to allow the Complainant to participate in the process and present any evidence to make any submissions he so wishes. The Respondent claims that for the most part, the Complainant refused to attend same meetings. When he did, the Complainant’s contributions to the process were entirely obstructive, to the extent that he simply requested a severance package in relation to the termination of his employment.

The Respondent argues that the process of reasonable accommodation is a bilateral and consultative one. Throughout this process, the Complainant has not engaged with the Respondent in any meaningful or constructive way. The Respondent also submits that the underlying source of the Complainant’s disability is one of dissatisfaction with the Respondent. In that regard the Complainant was offered the grievance procedure in an effort to resolve these concerns. Again, the Complainant failed to exhaust this process and instead sought a severance package in relation to his employment.

The Respondent cited A Health and Fitness Club v A Worker EDD037 in respect of the test in relation to the provision of reasonable accommodation.

The Respondent cited also A Former Employee v A Government Department [2016] 27 ELR 81 where it was held that “intrinsic to this bilateral process is the employee’s duty to engage and cooperate with the employer” and further “I am satisfied that the Respondent did all that was reasonable to accommodate the Complainant’s needs in the workplace and if there was any shortcomings in relation to the accommodation provided, this was due to her reluctance to properly engage with the Respondent’s attempts to assess her accommodation needs.”

The Respondent cited also Nano Nagle School v Daly [2018] IECA 11.

The Complainant claims that he was discriminated against by the Respondent on the grounds of his disability in that the Respondent failed to provide him with reasonable accommodation. The Complainant claims that the discrimination extends to the present day and that the most recent date of discrimination is 3rd January 2017 (the date the Complainant’s complaint was forwarded to the WRC). The claim was received by the WRC on 5th January 2017. I note that there were significant developments and engagements between the Parties after the submission of the claim to the WRC on 5th January 2017.

The Labour Court in EDA1830 HSE North West v Patricia Cullen Killoran stated:

“It is clear from the statutory provisions that the time limit runs for a period of six months (or twelve months on extension) from the date of acts which are alleged to constitute discrimination or victimisation. Therefore, incidents which occurred after the complaint had been presented could not have been comprehended by the claim and could not be relied upon for the purpose of obtaining redress.

The Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. Subsection (5) of section 77 provides for situations where there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. Subsection (6) (A) provides that an act can be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on a complainant Barclays Bank plc v Kapur [1989] IRLR 387. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act.”

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 discrimination may be inferred. If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such some prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

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

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

It was not in dispute between the parties that the Complainant is a person with a disability within the meaning of Section 2(1) of the Acts and that the Respondent was notified of same.

The definition of disability has been interpreted in an extremely broad and encompassing manner. The Complainant absence was due to “work related stress”. Work place stress was deemed a disability in Mr. O v A Named Company DEC-E2003-052. The Complainant claims that he suffered with chronic adjustment disorder and moderate depression. It is well settled in law that depression comes within the definitions of disability (Stobart(Ireland) Limited v Beaschal EDA1411).

Accordingly, the issue for decision in this case is whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts

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

Section 16 of the Acts as interpreted in the case of A Health and Fitness Club v A Worker EED037 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”.

I must also make reference to the interpretation placed on Section 16 of the Act by the Court of Appeal in Nano Nagle School v Marie Daly[2018] IECA 11 case when setting out the relevant case law in this area. This case is the most recent authority on requirements in relation to reasonable accommodation. That decision, I understand is under appeal but at this time it remains the law which must be applied. In reference to this decision, I note the recent Labour Court case, Excellence Limited v. Adam Herzyk EDA1815 where the Court found,

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

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

Discussion and Application

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

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

The evidence before me shows that the Complainant commenced a period of long term sick leave on 28th July 2014. The Respondent took immediate steps and on 31st July 2014 wrote to the Complainant stating:

“I note that you have been on sick leave since 28th July 2014 and the reason stated on your Doctor’s Certificate submitted yesterday is “work related stress”. Naturally we are concerned about you and I am therefore writing to request your attendance to an informal welfare meeting … The purpose of this meeting is to establish the nature and extent of your illness, how long it’s likely to be before you are well enough to return to work and what arrangements we might need to make to ensure your safety upon your return.”

SIPTU wrote back to the Respondent on 7th August 2014 requesting the Respondent to “desist from contacting him in such terms again”, stating that “surely you do not expect a person who has only just went out on sick leave with stress, to now attend a meeting to discuss the very issues that caused his illness in the first instance” and further “when [the Complainant] is fit to return to work we will endeavour to arrange a meeting at the earliest convenience to discuss the issues raised in your correspondence”.

The Respondent wrote to the Complainant on 12th August 2014 clarifying the intention of its initial letter of 31st July 2014

“This meeting was purely to discuss your on-going illness and absence from the company and also to explore if there is anything that the company can do to help and facilitate you during this time.”

“…the meeting was simply to discuss your issues and see how we might help your return to your position within the company.”

“As employers we have a duty of care to you as an employee of the company to ensure your well-being, which is exactly what the company is trying to honour.”

and noting that:

“you have highlighted that you believe that factors in the workplace are causing you “stress” and until such time that these are identified clearly and addressed it is unlikely that your stress will be eliminated”.

The Respondent again extended an invitation to meet to “have these issues identified and addressed in the appropriate manner”.

The Complainant replied on 18th August 2014 stating:

“…your continued insistence that I attend a meeting with you is only adding to my condition, I now call upon you to desist from your actions as I consider these actions to amount to acts of bullying.”

“When I am fit to return to work I will submit a final certificate to you giving you notice of my intentions.”

In the letter the Complainant notes that he would rely on this correspondence “should it be necessary to refer my concerns to third party”.

The Respondent replied again on 25th August 2014 again clarifying its intention and extending an invitation to meet when and where suits the Complainant.

The Respondent wrote to the Complainant again on 4th February 2015 expressing its concerns and inviting the Complainant to a meeting to “to establish the nature and extent of your illness, how long it’s likely to be before you are well enough to return to work and what arrangements we might need to make to ensure your safety upon your return.”

As no response was received the Respondent again wrote to the Complainant on 20th February 2015 stating “we would like an opportunity to discuss your intentions with regard to a return to work and to see how this can be safely accomplished.” “If you feel you are unfit to engage please revert back in writing to inform me. We have no desire to cause you distress, however we do wish to get an update on your state of health and the likeliness of your return to work…”

SIPTU wrote to the Respondent on 27th February 2015 again asking to “desist from contacting him in such terms again”. SIPTU alleged in the letter that the Complainant was bullied at work.

The Respondent replied to the Complainant and SIPTU on 4th March 2015. The Respondent pointed out that it has never been made aware of an allegation of bullying previously. The Respondent informed the Complainant that it takes bullying complaints very seriously. The Respondent forwarded a copy of the Bullying Prevention Policy (which has been previously issued and signed for by the Complainant). The Respondent again noted that “…any Welfare meeting or Formal /Grievance Meeting will only be held in place of convenience to yourself…”

The Respondent again wrote to the Complainant on 21st July 2015 asking:

·         How long it’s likely to be before you are well enough to return to work and

·         What arrangements we might need to make to ensure your safety upon your return”

Once again, an invitation to meet was extended.

The Complainant replied on 10th July 2015 “…please stop writing to me in such terms as your actions are very upsetting to me. When my doctor think that I am fit to return to work I will notify you immediately.”

Thereafter, the Respondent requested the Complainant’s consent to contact his GP or a specialist who treated him to obtain a report on his state of health. The Complainant consented to this and the Respondent wrote to his GP, Dr C on 15th August 2015. The Respondent posed a number of questions to the GP and, inter alia, asked:

“Are there any reasonable adjustment we could make to accommodate any disability or facilitate a return to work?”

The Medical Report was issued on 23rd October 2015 by Dr C noting:

“[the Complainant] would like to return to work. I feel his medical problems need to be considered here in planning a return to work. I feel he should meet with management, and I would avise (sic) that he be accompanied as this would be less stressful for him.”

SIPTU subsequently advised that the Complainant would attend a meeting “on the strict understanding that all dialogue will take place through his appointed representative” which the Respondent did not believe to be appropriate.

Subsequently, the Respondent sought further medical assessments of the Complainant’s health.

On 9th May 2016 the Complainant’s GP wrote to the Respondent stating that “I am of the opinion, that he is still suffering from depression and is not fit for work at the present time.”

I note that Medmark report dated 2nd June 2016 states:

“In my opinion [the Complainant] is not fit to return to work… I expect he will remain unfit to return to work for at least 6-12 months. While I would hope that he would do well I am not in a position to guarantee that he will return to work in the future.

[the Complainant] personally express some doubt of a long term ability to return to work…”

I note that neither of the specialists who examined the Complainant at this juncture made any recommendation in relation to the provision of reasonable accommodation for the Complainant’s disability. There was no suggestion of suitable alternative. Both stated that the Complainant is not fit to return to work.

The Respondent again invited the Complainant to a Medical Capability Meeting to discuss “whether there are any reasonable adjustments that can be made to your job or in the workplace that would facilitate a return to work” and “whether there is any alternative employment available that would be suitable for you”. Transcript of the meeting held on 22nd June 2016 was exhibited at the adjudication hearing. I note that at the meeting SIPTU suggested that they are “not adverse at this moment in time to coming to some amicable arrangement with the company in relation to an agreed exit package and that would be our preferred option”. It was suggested that the Complainant would accept the value of the statutory redundancy package. The Respondent inquired at the meeting if there are any reasonable adjustments that can be made to facilitate the Complainant’s safe return to work. SIPTU noted that the union cannot make an assessment as it did not know what level of contract the Respondent has and what work is available within the organisation at this time. The union noted at the meeting that the Complainant was not fit to return to work at present. In respect of the difficulties at work the Complainant has alleged I note that the Respondent advised the Complainant to utilise the Respondent’s grievance procedure.

The Respondent wrote to the Complainant on 28th June 2016 informing him that, as the Occupational Health Specialist has indicated that he considers the Complainant unfit for work for a further period of 6-12 months the Respondent proposed to re-assess the situation again in 6 months and requesting the Complainant to contact the Respondent if his situation changes in any way in the meantime.

In response SIPTU wrote to the Respondent on 16th August 2016 raising grievance in respect of the following:

“1. The questioning by the company of [the Complainant’s] cognitive abilities in relation to memory retention

2. Establishing contact with [the Complainant’s] medical practitioner without authorisation

3. being placed on sort (sic) time resulting in a loss of hours and wages

4. refusing to deal with [the Complainant’s] chosen representation”

By letter of 9th September 2016 SIPTU informed the Respondent of its intention to refer the matter to the WRC. Following an exchange of correspondence, a grievance meeting was held on 24th November 2016. I note that the Complainant submitted his complaint to the WRC on 5th January 2017, prior to the outcome of the grievance meeting being issued on 10th January 2017. I note that the Complainant did not appeal the outcome of the Grievance meeting and SIPTU in its letter of 27th January 2017 pointed out that “the failure of the company to provide our member with reasonable accommodation in respect of his disability is the subject of a formal complaint under the auspices of the Adjudication Service of the Workplace Relations Commission. At this juncture we do not see the point of further fruitless engagements with the company outside of that forum.”

Having considered the evidence before me I find that the Complainant remains an employee of the Respondent, albeit on certified sick leave. The medical reports deemed the Complainant unfit for work. Neither of the specialists who examined the Complainant made any recommendation in terms of possible accommodations for his disability. I note at least two medical reports obtained post-submission of the complaint to the WRC, dated 15th May 2017 and 14th August 2017 state that the Complainant remains unfit to work.

Having considered the extensive evidence in this case I am satisfied that the Respondent had engaged with the Complainant and his representative throughout the Complainant’s absence. I find that the Respondent made significant efforts to engage with the Complainant to address the matter of his health and possible return to work and the Complainant was afforded ample opportunity to discuss the matter with the Respondent. I find that the Complainant initially exhibited considerable reluctance, at best, to engage with the Respondent in relation to the matter. I find that at the stage when the Complainant did engage with the Respondent, it appears that significant emphasis on his part was on securing a severance package rather than facilitating his safe return to work.

I find that the Respondent dealt with the Complainant’s absence and potential return to work in a reasonable and responsible manner.

Having regard to the totality of the evidence adduced, I am satisfied that the Respondent complied with its obligation in that it fully engaged with the Complainant at regular intervals throughout the duration of his absence from work. I find that the Respondent was fully informed and in full possession of all the material facts regarding the Complainant’s medical condition.

Having regard to the forgoing, I find that the Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts 1998 -2015. I find that the Respondent did not discriminate against the Complainant on grounds of disability in terms of Section 6(2) and contrary to Section 8 of those Acts in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of Section 16(3) of the Acts.

Disability-reasonable accommodation – work related stress- depression – unfit for work