Complainant

Respondent

Anonymised Parties

Support and Counselling Project Worker

A Charity

Representatives

FÓRSA Trade Union

 Alastair Purdy & Co. Solicitors

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-00023237-001

15/11/2018

The Complainant submitted her complaint to the WRC on 15^th November 2018 claiming that she was discriminated against by the Respondent by reason of her disability in that she was dismissed for discriminatory reasons and that the Respondent failed to give her reasonable accommodation for her disability.

Due to the sensitivities of this case, I have made a decision to anonymise the parties.

The Complainant submits as follows:

The Complainant alleges that she was subject to discriminatory dismissal on grounds of disability under Section 6(2)(g) of the Employment Equality Acts (the Acts) and contrary to Section 8 of the Acts concerning her conditions of employment. The Complainant also alleges that the Respondent failed to provide her with a reasonable accommodation contrary to Section 16 of the Acts.

The Complainant submits that she commenced employment with the Respondent on 6^th January 1997, initially as a secretary / office administrator and subsequently she held the post of Support and Counselling Project Worker. The Complainant’s hours of work were 28 hours per week for which her gross pay was €696.92.

The Complainant submits that in late November 2015 she became very ill and was admitted to hospital. In December 2015 she was diagnosed with high risk acute lymphoblastic leukaemia. The Complainant was submitting medical certificates to the Respondent in line with the company’s sick policy and she was paid sick pay in accordance with her contract of employment up until February 2016. In the following months the Complainant underwent intensive treatment.

The Complainant was referred to Medmark for an Occupational Health Assessment on 7^th June 2017. Following this appointment, a report was issued to her employer stating that she was unfit for work, and that she remained under medical care, and with ongoing medical management it was expected that her symptoms would improve progressively. The doctor confirmed that she would be happy to review the Complainant again if requested to do so.

On 30^th November 2017 the Complainant was referred to Medmark for the second time. Once again, the Respondent was furnished with a report concerning her condition. This report stated that whilst significant symptoms continued to impact on her ability to participate in usual activities of daily living that she was engaged in appropriate management measures in order to address her ongoing medical issues. The doctor stated that she was not in a position to offer an accurate opinion on the Complainant’s prognosis for returning to work at this time. She also stated that she anticipated that the Complainant would require a further period of several months’ sickness absence in order to address her ongoing medical issues and to “fully recover” and recuperate from her illness. The doctor also confirmed that she would be happy to review the Complainant at any time if an updated opinion on her fitness to return to work is required.

On 7^th March 2018 AM, Manager of the Respondent wrote to the Complainant inviting her to attend a meeting with management on 21^st March 2018 to discuss the implications of the medical assessment which was carried out on 30^th November 2017.

On 21^st March 2018 the Complainant met with AM and a board member BK. The Complainant was represented by Fórsa. At the meeting Fórsa stated that while the Respondent provides counselling and support services to persons with life altering conditions, it had failed to show the same level of continued support for one of their own workers when confronted with a life altering condition of her own. BK stated that the Respondent had already given two years, and it had to think about its clients, who needed stability. Fórsa inquired if any of the staff had ever taken maternity leave in the past and the Complainant confirmed that she had done so on two separate occasions. Fórsa stated that the Respondent could continue with the temporary contracts until Medmark was in a position to offer a more accurate opinion of the Complainant’s prognosis to return to work. Fórsa stated at the meeting that from a perusal of the data received from the Respondent it had formed the opinion that the board had already made their mind up on the Complainant’s dismissal and BK refuted this assertion. BK asked the Complainant “do you have any sense of when you might be ready to return” and the Complainant stated that “she was not in a position to offer a return to work date at present as she was awaiting a review with her consultant”. The Complainant then became very upset and left the room crying.
The meeting reconvened after a few minutes and Fórsa again advised the Respondent that it could continue with the temporary contracts in order to have a review of the medical evidence with Medmark at a future date when the doctor would be in a position to offer a more accurate opinion of her prognosis to return to work. AM said that management would write to the Complainant with their outcome.

The Complainant submits that on 2^nd May 2018 she received correspondence from AM advising her that her employment with the Respondent was being terminated as of 29^th June 2018, eight weeks from the date of the letter.
The letter stated “as you are aware you have been on medical leave since November 2015 and the occupational health assessment from our company doctor, [named] of Medmark Occupational Healthcare on 30 November 2017 indicated that she could not ascertain a foreseeable return to work date. This report stated ‘unfit indefinitely’ as the outcome and [named doctor] reports that ‘In my opinion [the Complainant] is currently medically unfit to return to work…”

The letter further states “Due to operational requirements, we have no option but to terminate your employment on the grounds of incapacity”.

The Complainant was also advised that she could appeal the decision to dismiss her if she so wished, by writing to the chairman of the Respondent setting out the reasons for her appeals within 10 working days. On 9^th May 2018 the Complainant wrote to the Chairman appealing the decision of the board to dismiss her. She stated that she believed that the Respondent had not been reasonable in all the circumstances, that the Respondent had not taken fully into account her long number of years working with the company, and stating that the Respondent could have continued to employ someone on a temporary basis for a further period of time in order to asses her ability to return to work or to find a reasonable accommodation.
On 1^st June 2018 the Complainant attended the appeal hearing. The Complainant was represented by Fórsa. Fórsa argued that the Respondent had not considered a reasonable accommodation as required by Section 16 of the Acts. It was also argued that the Complainant could have been seen by a consultant haematologist for an update on her condition before the decision to dismiss her was taken as Medmark doctor had already stated that she was “not in a position to offer an accurate opinion on her prognosis for returning to work at that time”. She said that the Complainant was “motivated and keen to return to work in the future once she is medically well enough”.
The Union informed the appeals board that the Complainant had received an updated report from Consultant Haematologist by way of correspondence dated 31^st May 2018. The report stated that whilst the Complainant was in remission from the acute lymphoblastic leukaemia since her transplant in May 2016 she had multiple complications from the transplant itself. The report continues “She has had an excellent response to treatment. However, it can take a number of years before all the complications of the transplant can be completely controlled. Based on her response to treatment to date, we remain optimistic that she will be fit to return to work in the coming months.”

The report was shared with the appals board and they were asked to consider the report and to consider ways of making a reasonable accommodation even at this late juncture especially now that they were in receipt of the updated medical report. The Union argued that the decision to dismiss was communicated to the Complainant on 2^nd May 2018 based on a medical report dated 30^th November 2017.

The appeals board was then informed that the Complainant had also submitted a data request to the Respondent and the contents of the data received suggests that both appeals officers had already been involved in sub-committee which was established to issue a recommendation to the board about her continued absence from work on sick leave. Therefore, as the board had already decided to dismiss the Complainant from her employment on the recommendation of the sub-committee, it was argued that the Complainant was denied the principles of natural justice and fair procedures and that her subsequent dismissal was not the actions of a reasonable employer. In her report of 20^th November 2017 the Medmark doctor stated that “in my opinion, [the Complainant] is currently medically unfit to return to work. I am not in a position to offer an accurate opinion on her prognosis for returning to work at this time. However, I anticipate that she will require a further period of several months’ sickness absence in order to address her ongoing medical issues and to fully recover and recuperate from her serious illness, I would be happy to review [the Complainant] at any time if an updated opinion on her fitness for work is required.”

The Complainant submits that the Respondent did not make any attempt to have a follow up review and dismissed the Complainant in June 2018 on the basis of report dated 30^th November 2017, even though Medmark doctor said she was not in a position to give an accurate opinion and the Complainant’s prognosis for returning to work at that time.

The Complainant submits that the Respondent did not seek an update from the Complainant’s treating consultant, and it made no effort to understand what, if any support or other reasonable accommodation would have facilitated her return to work. The Respondent did not discharge its responsibility to make an informed and considered decision as regards whether reasonable accommodation would facilitate the Complainant in being capable of carrying out her duties. The Complainant argues that the Respondent had an obligation to fully and properly assess all medical evidence as part of its consideration arising from its obligation to the Complainant who was suffering from a disability within the meaning of the Acts.

In the circumstances of this case, it is submitted that the Complainant suffers with a disability as defined by the Acts. It is submitted that her disability is acute lymphoblastic leukaemia, which arises from the malfunctioning of the bone marrow. Acute lymphoblastic leukaemia occurs when a bone marrow cell develops errors in its DNA. The errors prompt the abnormal cell to continue growing and dividing, when a healthy cell would normally stop dividing and eventually die. When it happens, blood cell production becomes abnormal. The bone marrow produces immature cells that develop onto leukemic white blood cells called lymphoblasts. These abnormal cells are unable to function properly, and they can build up and crowd out the healthy cells, like red blood cells and platelets. The Complainant therefore submits that this condition meets with the definition within the Acts i.e. The malfunction, malformation or disfigurement of a part of a person’s body. It is further submitted that this condition has been confirmed medically by a consultant haematologist and has been the subject of ongoing medical intervention and procedures.

It is submitted that the Respondent and its board members were well aware at all times that the Complainant had these disabilities, as her absence from work was a constant feature on both the management and team meetings within the work place. The Complainant submitted regular medical certificates concerning her condition and her absence from work.

It is submitted that the Respondent failed to provide any reasonable accommodation in respect of the Complainant’s disability.

It is submitted that the Complainant’s employment was terminated on grounds of incapacity, which was due to her disability. It is therefore submitted that her dismissal was discriminatory contract to Section 6(2)(g) pf the Acts and Section 8 in relation to her conditions of employment.

The Complainant argued that the fact that the Respondent knew that it was dealing with an employee who was suffering with disability within the meaning of the Acts, puts it into a situation whereby it was required to comply with its obligations. These obligations derive from Article 5 of the Directive.

“Article 5 of the Directive 2000/78 established a general framework for equal treatment in employment and occupations. This Article imposes a positive duty on employers to 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, as provided in Section 16(3) of the Acts. The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicality of what may be required, the cost involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required, as held in HK Danmark. In circumstances where an employer is considering terminating the employment of a person with a disability, there is an obligation on them to consider “reasonable accommodation”. This obligation carries a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If, however, the employer fails to properly understand the scope of the duty and fails to adequately consider all of the options that may be available, they will have failed in their statutory duty towards the disabled person.”

Fórsa argues that in the instant case, the Respondent did not take these obligations into consideration as is evident from the fact that it adopted no measures whatsoever. The Respondent’s approach was to summon the Complainant to meetings with management, to quiz her about her medical condition and to request from her a return to work date. The Respondent sent her to its own Medical Advisor, who reported that she “was not in a position to offer an accurate opinion on her return to work prognosis at this time”.  The doctor also confirmed that she would be happy to review the Complainant at any time if an updated opinion on her fitness to return to work is required, the Respondent did not follow up with the occupational health doctor on that offer, instead it proceeded to dismiss the Complainant on the basis of the report which was six months old at the time of dismissal. The Respondent did not await an update from the Complainant’s treating consultant prior to taking the decision to terminate the Complainant’s employment. It did not make an informed decision as it did not make the appropriate enquiries as to an accurate opinion of her prognosis to return to work. In the circumstances Fórsa argues that in this case the Respondent failed to properly understand the scope of the duty and disregarded its duty altogether.

Fórsa argued that in applying the principles outlined in EDA1634 where the Court cited from A Worker v An Employer ELR159 it is evident that the Respondent did not comply with its obligations, it made no effort to make reasonable accommodation for the Complainant. The Respondent did not provide more favourable treatment than a person without disability. The Respondent did not make proper adequate assessment of the situation before taking the decision to dismiss the Complainant. All the Respondent had to do was to wait until the Complainant had attended her own specialist, this would have been a practical measure, it would have been reasonable and it would not have placed a disproportionate burden on the Respondent.

Fórsa further argues that in applying principles outlined in EDA1412 it will demonstrate how the Respondent failed in its duty to objectively evaluate the Complainant’s situation concerning “the degree to which appropriate adjustments could be made to her working arrangements so as to render her capable of participating in the employment”. The Respondent did not await the outcome of the Complainant’s review with her treating consultants. In correspondence dated 31^st May 2018 the treating consultant haematologist outlined the background to the Complainant’s condition and advised that she had been in complete remission from the acute lymphoblastic leukaemia since she underwent cell transplant in May 2016. The correspondence further states “based on her response to treatment to date, we remain optimistic that she will be fit to return to work in the coming months”.

At the Complainant’s appeal hearing on 1^st June 2018 Fórsa argued that the Respondent should have waited until it had the up to date medical advice from her treating consultant before making the decision to dismiss the Complainant. The Consultant’s report obtained by the Complainant on 31^st May 2018 was shared with the appeals committee and they were asked to take it into consideration when deciding on the outcome of the appeal. Fórsa claimed that the Respondent did not consider any special treatment i.e. by providing for a phased return to work or by considering shorter working week, or working from home, in fact it is submitted that there was no consideration of any kind other than to dismiss the Complainant. It was argued that it would be cost neutral to continue the Complainant’s employment as she was not receiving any pay, and this would not have placed a disproportionate burden on the Respondent.

Fórsa submits that by letter dated 12^th June 2018 the Respondent advised the Complainant that it was unable to uphold her appeal.

The Complainant’s representative cites also EDA1838, EDA 1634, DEC-E/2011/49, DEC-E2009-78 in support of her case.

Evidence of the Complainant

The Complainant stated that she twice availed of maternity leave and the clients were supported by other workers in the organisation. She noted that she was also accommodated in respect of shorter working week.

In cross examination the Complainant confirmed that she did not consult with her GP or consultant the option of working from home. She noted that her representative made a comment at the meeting on 21^st March about possibility of her answering calls but she could not recall him asking about working from home option. She confirmed that it did not occur to her to obtain medical evidence from her own consultant to contradict the report of 30^th November 2017. She also agreed that the opinions of her GP and her Consultant were not in agreement with each other.

The Respondent submits as follows:

The Respondent is a registered charity.
The Complainant commenced her employment with the Respondent on the 6^th of January 1997 initially in an administrative capacity and subsequently was engaged as a Support and Counselling Project Worker. This is a full-time position within the Respondent's organisation.

Due to the Complainant's full-time role within the Respondent's organisation, while she would have clients who would make an appointment to see her for counselling, she would also be available for parties who would attend the Respondent's premises without an appointment or was available to accommodate people who ran late for appointments or had to re-schedule same at late notice.

In November 2015, the Complainant became unwell and was certified as unfit to work. At this time, the Respondent's General Manager, AM, took over the counselling of clients and the office administrator took over the administration duties attached to those clients. It transpired that the Complainant was diagnosed with acute lymphoblastic leukaemia and as her sick leave would not be of a short-term nature, it was noted that the current arrangements for the covering of her work load was not sufficient.

The Respondent had already employed a counsellor on a sessional basis, being 2 hours a week and this arrangement was thus increased to 6 clients (equating to 6 hours) per week in February 2016. In addition, the Respondent hired a second sessional counsellor for 4 clients (4 hours) a week. These 2 sessional counsellors are now the Respondent's main two counsellors, however, due to their sessional nature, they only attend the Respondent's premises at the times of specified appointments and are not available for "drop ins" or to accommodate late or rescheduled appointments.

As it was not known how long the Complainant would be absent for, this was considered the best manner in which to accommodate the counselling requirements during her sick leave period.

Since November 2015, the Respondent has required additional counsellors who have been contracted for up to one to two clients per week. At present, in addition to the 2 main sessional counsellors, the Respondent contracts 3 counsellors to see 3 clients per week and 2 counsellors to see 1 client per week.

In May 2016, on receipt of a medical certificate confirming that the Complainant would be absent for a further 6 months, the Respondent made the decision to advertise for a support worker on a specific purpose contract. This post was to deal with the support element of the Complainant’s role. It was felt that as the Complainant's clients had originally been transferred to the General Manager and then subsequently to sessional counsellors that it be best practice that they remain with those counsellors. Due to that, the post advertised was for not the entirety of the Complainant's position as Counsellor and Support Worker but merely the support element.

The Respondent hired a party for this support role, on a specific purpose contract, to cover the Complainant's leave, in July 2016. That party left the position in January 2018 seeking a permanent role. Another party was hired in March 2018, again on a specified purpose contract.

As averred to above, the benefit of having the Complainant as a full time employee, capable of counselling and support work gave leeway to the Respondent to accommodate necessary counselling sessions for clients who would drop in, in crisis or who would miss their appointments. As the Complainant was a full time employee, she would be present to deal with these parties, as opposed to sessional counsellors who only attend at specified and pre booked times.

There is also an additional cost to hiring sessional counsellors as they must be paid even if a client fails to show up or, if a client arrives too late, they may not be able to deal with the session in the time available.

A further element of the Complainant's position related to the initial interview process with prospective clients. This aspect of the role has been taken on by the General Manager in the Complainant's absence. Additionally, the additional sessional counsellors was stretching the limited accommodation resources of the Respondent and has added to the administration duties associated with organising applicable rooms, allocating counsellors and arranging appointments.

As cited above, the Complainant commenced sick leave in November 2015 and on the 7^th June 2017, the Respondent arranged for the Complainant to be occupationally reviewed and this was carried out by Medmark. The report which emanated from that review, noted the seriousness of the Complainant's illness and confirmed that she remained unfit for work for the short to medium term.

On the 30^th November 2017, as the Complainant remained certified as unfit to work and was now absent for 2 years, the Respondent sought a second occupational report. At that time, the occupational physician stated, "It remains unclear whether her medical issues will improve sufficiently for her return to her usual role at work going forward". She then goes on to opine that the Complainant is not fit to return to work at that time and that she is not in a position to confirm when she will be fit to return and furnishes an opinion of "unfit indefinitely".

Following receipt of this report, the General Manager furnished a copy of same to the Board of Management to be reviewed at the next meeting in January 2018. It was decided at that meeting that the General Manager would contact a Human Resource service for advice and seek a meeting with the Complainant.

The Respondent then issued a letter to the Complainant, dated the 7^th March 2018 inviting her to attend a meeting on the 21^st March 2018 to discuss the content of the Medmark Report of November 2017 and seek her input and ascertain if she could foresee a possible return to work date. The letter indicated that the Complainant's role could not be held indefinitely and advised that the role may be at risk of termination on the grounds of incapacity. The Complainant was advised of the right to representation.

A meeting duly took place on the 21^st March 2018 wherein the Respondent was represented by the General Manager, AM and BK, a director. The Complainant was represented by her trade union representative, MM. At that meeting, the issue of the replacements for the Complainant, during her sick leave was discussed and MM put forward that fixed term contracts could continue for a period of up to 4 years. He was then advised by BK that due to the nature of the work, the Respondent was finding it difficult to sustain the position with parties on short term contracts and the difficulties of sessional counsellors. The question was put to the Complainant at the meeting as to whether she was aware of when she would be in a position to return to work and she replied that she did not know.

On the 2^nd May 2018, the Respondent issued a letter to the Complainant indicating that her position within the organisation was being terminated on the grounds of incapacity. It stated that she had now been absent for a period of 2 years and 5 months and there was still no foreseeable return to work date. The letter also offered the Complainant the right to appeal the decision within 10 working days of the letter.
The Complainant did so appeal by way of letter dated the 9^th May 2018 and an appeal hearing took place on the 1^st June 2018. GO and EE, of the Respondent organisation heard the appeal and again, the Complainant was represented by her trade union representative. At that appeal meeting, the Complainant furnished a letter/report from Dr DO’L. Within that document, Dr DO'L felt that there was an "optimism" that the Complainant would be fit to return to work in the coming months.

However, contrary to the opinion set out therein, the Complainant has submitted to the

Respondent a day prior, a medical certificate from Dr MO'F dated the 28^th May 2018, indicating that she unfit for work from the 1^st June 2018 for the next 6 months.

Taking into account the fact that at the appeal hearing on the 1^st June 2018, the Complainant was still not in a position to offer any possible return to work date and indeed, she had, the day before the appeal hearing, submitted a medical certificate certifying her as unfit for work for the next 6 months, in contrast to Dr DO'L's hopes, the decision was made to uphold the decision to terminate the Complainant's employment. This was communicated to the Complainant by way of letter dated 12^th June 2018.

Respondents Arguments

l. Burden of Proof:-

The test as set out in Section 85 (A) of the Employment Equality Acts provides that it is for the Complainant to establish facts from which it may be presumed that discrimination has occurred.

In this regard there have been a number of significant cases the most significant of which is the Southern Health Board - v - Mitchell [2001 ELR201]. This was expanded on in the HSE Northeastern Region - v - Sheridan [EDA0820]. In this case the Labour Court declared:

1)      The complainant must prove the primary facts upon which he or she relies in alleging discrimination.

2)      The court or tribunal must evaluate those facts and be satisfied that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

3)      If the complainant fails at stages 1 or 2 he or she cannot succeed. However, if the complainant succeeds at stages 1 and 2 the presumption of discrimination comes into play and the onus shifts to the Respondent to prove on the balance of probabilities that there is no discrimination.

It is a prerequisite therefore that there are some primary facts upon which the Complainant must rely to ground her allegation of discrimination. These cannot be mere speculation or an assertion unsupported by evidence. Accordingly, the Respondent puts the Complainant on full proof that an act of discrimination within the terms of 1998 Act has actually occurred.

2. Disability:-

The Complainant, in her submission, recites Section 2 of the Employment Equality Acts, 1998-2015 in relation to the definition of disability. The Respondent does not intend to dispute that the Complainant's illness falls under this definition.

3. Direct Discrimination

Without prejudice to the above, by virtue of Section 6 (1) (a) of the Employment Equality Acts 1998-2011, in order for individuals with a disability to establish they were subjected to direct discrimination by their employers, they must demonstrate that they were treated less favourably than another person is, has been or would be treated in a comparable situation on the grounds of their disability and that person in a comparable situation has no disability or has a different disability to them. In addition to this, the Complainant needs to show a causal link or connection between the disability and the alleged discrimination.

Comparator

Firstly, the issue of comparator needs to be established, which in itself a difficult hurdle for the Complainant. The definition specifically demands that a person to whom the Complainant is comparing themselves (either able bodied or with a different disability) must be in a comparable situation. In London Borough of Lewisham v Malcont [2008] UKHL 43, [2008] IRLR 700, the House of Lords held that if an employer would have treated a non disabled person in the same way as a disabled person had been, there could be no disability related discrimination.

The Respondent contends that the Complainant has made no such election and has produced no evidence that any alleged mal treatment of her, or conditions of her employment. In this regard it is submitted that both the Employment Equality Acts and the Directive provide that discrimination can only occur where "a person is treated less favourably than another person is, has been or would be treated in a comparable situation". The Respondent respectfully submits that the Complainant was not treated differently or less favourably than any other person would be in a comparable situation. The only comparator [if there is one] can be an able bodied person who was treated differently.

4. Nature and extent of obligations

Section 16(1) of the Employment Equality Act, 1998-2015 states

"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 that individual

(b) is not 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”

It is clear from the medical reports and indeed medical certificates attached that the Complainant was not capable of performing her duties at all and in this regard, the Respondent was within its rights to terminate the employment on the grounds of incapacity.

5. Reasonable Accommodation
The above referenced Section 16 (1) must be read in conjunction with section 16 (3), wherein an employer must provide "appropriate measures" to allow a disabled person access to employment, to participate or advance in employment, provided it does not place a disproportionate burden on the employer.
This definition provides a positive obligation on employers to take appropriate measures, requiring them to remove barriers, make adjustments to enable the person suffering from a disability to be placed in a similar position as able bodied persons.

The case of Fitness Club v A Worker EED037, as upheld by the Circuit Court, held

“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... the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employees capacity.

In practical terms this will normally require a two stage enquiry which looks firstly al the factual position concerning the employees capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at medical evidence available to the employer either from the employee's doctor 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 costs 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.”

In the case at hand, there was no dispute between the parties and the medical evidence was clear that the Complainant was not capable of performing her duties. Following on from this, the accommodation sought by the Complainant was that her position be maintained by the employer continuing to cover her duties by way of employees on short term contracts.

The Respondent had endeavoured to maintain the Complainant's position for as long as an organisation such as it is, could viably do so. As recited above, the counselling element of the Complainant's duties were being covered by sessional counsellors which gave the organisation little leeway to deal with its clients in crisis. Additionally, this posed an increased cost to the organisation and stretched its resources in terms of accommodation and administrative services.

The support element of the role was covered by way of a specific purpose contract to cover the Complainant's leave. Contrary to the comments made by the Complainant's representative, it was not possible to offer fixed term contracts as the period of leave that was to be covered was not determined. Due to the nature of this contract, the Respondent has lost the first recruit who left to take up a role on a permanent contract and the organisation fears that this shall be repeated.

Due to the Respondent's charitable status, it relies heavily on grants to fund its services. Due to this, there is not available an enviable supply of funds to maintain sessional counsellors and as the Respondent is not in a position to offer a fixed term contract but only that of a specific purpose contract, it is finding recruitment and retention an issue. This of course has a "knock on" effect to the vulnerable clients who use the services provided by the Respondent. All this shows that it was not possible to maintain the Complainant "on the books" for an indefinite period of time.

In relation to the processes followed in relation to the termination, the case of Dublin Bus —v McKevitt [2018] IEHC, stated that the code of practice didn't apply to dismissals on medical grounds. In cases such as these, the following must be the case:

1.       That the health/incapacity is the reason for the termination

2.       That the reason is substantial

3.       That fair notice is given to the employee

4.       That the employee is given the opportunity of being heard.

The Respondent thus complied fully with all its obligations towards the Complainant and it is clear from the above, that the termination was solely based on the Complainant's incapacity and the Respondent's inability to continue with the employment after some 2 years and 6 months of an absence with no foreseeable return to work date.

Evidence of AM, the General Manager

AM submitted that initially she took over the Complainant’s appointments as it was unknown how long will she be out sick. The organisation had one sessional counsellor already and increased her hours. As it became clear that the Complainant would be on an extended leave second sessional counsellor was arranged. However, as sessional counsellors are paid per hour it put an extra expense on the organisation. With the Complainant being all day in the office, late or missed appointments could be accommodated or rearranged. This was not possible with the sessional arrangements. Moreover, as more people were involved in counselling it became more challenging for her in terms of supervision. When certs started coming on 6 months basis it was decided that the changes were not beneficial to the relationship with clients.
AM noted that support worker was recruited. However, she left for a permanent position elsewhere. Another person was recruited then and this person is also now looking for a permanent position.
AM emphasized that the organisation tries to accommodate its staff. AM herself took 2 months leave when family circumstances required her to do so. Subsequently, she returned to work morning only. AM stated that at no stage the Complainant asked for any other accommodation except asking to leave her “on the books”.

AM noted that no medical records were submitted at the meeting on 21^st March 2018 despite her stressing in the letter of 8^th March how serious the matter was. She clarified again that the Complainant was not able to provide a return to work date and an open-ended leave caused difficulties in terms of managing service provision which could not be done on the basis of specific purpose contracts.  AM stated that the organisation was sympathetic but it could not continue indefinitely in that manner.
In cross examination Fórsa raised the matter of the reliance by the Respondent on the report of 30^th November 2017. It was put to AM that the Complainant should have been referred again to Medmark. AM noted that she was hopeful the Complainant would have some medical documents. She noted that the Complainant was still on her 6 months sick leave and there was no need to refer her to Medmark at this stage.

Evidence of BK, Board Member

BK stated that her recollection was that there was no proposal to work from home or shorter week. She clarified that such issue would have to be brought to the board and it is too big an issue not to notice. She confirmed that there was a reference made to keeping the Complainant “on the books”.

Evidence of DO, the Treasurer

DO outlined the matter of funding, its limitation and the strict administration of funds. He noted that the organisation has very little discretion in terms of expenditure which mainly relates to salaries and upkeeping of the building.

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

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

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability".  
It was not in dispute that the Complainant is a person with a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint and that the Respondent was notified of same, and I concur with that view. I’m satisfied that the Complainant’s employment was terminated and it was terminated by the Respondent for reasons connected with her disability.

Accordingly, the issues for decision in this case are (1) whether the Complainant was discriminated against by the Respondent in relation to discriminatory dismissal on the grounds of disability and (2) 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.
In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Section 16(1)(b) of the Employment Equality Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which they have been employed. However, this defence is tempered by the provisions of Section 16(3)(b) of the Acts which provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if 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”.

Discriminatory Dismissal

The first issue that I must decide relates to the Complainant’s claim that she was subjected to a discriminatory dismissal on the grounds of her disability. Based on the evidence and submissions of the parties, I have established a number of key facts and I make the following findings:

The Complainant was absent from work on continuous sick leave as a result of lymphoblastic leukaemia from November 2015 until her employment was terminated with effect from 29^th June 2018. The Complainant submitted medical certificates on a regular basis during her absence confirming that she was unfit to attend work as a result of her illness.
During the course of the Complainant’s absence the Respondent referred her twice to Medmark for medical assessment.
The Respondent has arranged for the Complainant to be medically reviewed on 7^th June 2017. The Report of that review stated that the Complainant “remains medically unfit for work” and “It is not clear at this time whether [the Complainant’s] current medical issues will resolve sufficiently to support a return to work in the future. I anticipate that [the Complainant] will remain on sickness absence from work in the short to medium term future.”

The Complainant was again medically reviewed on the Respondent’s request on 30^th November 2017. The Complainant was out on sick leave for two years at this stage. The examining doctor noted in her report that the Complainant is “motivated and keen to return to work in the future once she is medically well enough”. However, she noted that “it remains unclear whether her medical issues will improve sufficiently for her to return to her usual role at work going forward”. The Report went on to say that “in my opinion [the Complainant] is currently medically unfit to return to work. I am not is a position to offer an accurate opinion on her prognosis for returning to work at this time. However, I anticipate that she will require a further period of several months’ sickness absence in order to address her ongoing medical issues and to fully recover and recuperate from her serious illness.” The report deemed the Compliant “unfit indefinitely”.

The Respondent wrote to the Complainant on 7^th March 2018 inviting her to a meeting on 21^st March 2018. The letter advised the Complainant that her role, due to operational requirement cannot remain open indefinitely. The letter informed the Complainant that, should the organisation not be able to ascertain a foreseeable return to work date the Complainant’s role may be at risk of termination on the grounds of incapacity. The Complainant was advised that the Respondent would like to discuss the implication of the Medmark report of 30^th November 2017 and, in particular to listen and consider the Complainant’s input prior to making any decision on her employment. The parties met on 21^st March 2018 to discuss her medical condition and whether or not she might be in a position to return to work. During the meeting it was explained to the Complainant that although the Respondent’s sympathies and heart were with the Complainant it needs to consider the impact of her absence on its clients. The Respondent explained that the relationship between a client and counselor was paramount and, in essence, the Respondent cannot continue with people on short-term contracts. The Respondent inquired if the Complainant has any sense of when she might be ready to return and the Complainant answered “no”. The Complainant did not submit any medical report or information from her doctor to the Respondent for consideration prior to or at the meeting.
There was conflicting evidence put forward in relation to the request to work from home and/or answering phone calls. Fórsa claimed it asked the Respondent to consider these options. Both of the Respondent’s representatives who attended the meeting on 21^st March argued that these were not mentioned at all. While the Complainant had some recollection of the comment about answering the calls, she could not recall Fórsa asking about working from home. The Complainant confirmed that neither of these options was discussed with or advised upon by her doctor.

Following the meeting the Respondent informed the Complainant in writing on 2^nd May 2018 that due to operational requirements it had no option but to terminate her employment. The Respondent outlined that it had given serious and lengthy consideration to the matter, in particular the Complainant’s long service. The Respondent further noted that the Medmark report stated that she is “unfit indefinitely” as the outcome. The Respondent noted that the Complainant had been absent from work for a period of 2 years and 5 months and it was not possible to ascertain a foreseeable return to work date.  

The Complainant appealed the decision to dismiss in writing on 9^th May 2018. The Complainant argued that the Respondent has not been reasonable in all circumstances and that her long service was not fully taken into account. The Complainant also felt that she is being punished for becoming sick. The Complainant believed that the Respondent could continue to employ temporary cover for a further period time in order to asses her ability to return to work or find a reasonable accommodation.

On 30^th May 2018 the Complainant submitted a medical certificate from her doctor certifying her unable to attend work from 1^st June 2018 for 6 months.

The appeal hearing was held on 1^st June 2018. During the meeting, as per the minutes exhibited by the Respondent, the Complainant’s representative highlighted her long service. Fórsa argued that keeping the Complainant on sick leave would result in no loss to the Respondent. Moreover, Fórsa claimed that the Respondent did not offer support or reasonable accommodation to the Complainant e.g. part-time work or phased return to work. At the meeting the Complainant presented a letter from Consultant Haematologist outlining the details of her illness and stating that “Based on her response to treatment to date, we remain optimistic that she will be fit to return to work in the coming months.”
The Complainant was informed of the outcome of her appeal by letter dated 12^th June 2018 and it was confirmed that that the decision to dismiss was upheld.

The major area of contention between the parties relates to the question as to whether or not the Respondent was in full possession of all the material facts in respect of the Complainant’s condition at the time when the decision to dismiss was made. Fórsa argued that the Respondent based its decision on the Medmark report of 30^th November 2017 and that a new, up to date report should have been obtained. The Union also argued that the opinion of the Consultant presented at the appeal hearing was not fully considered. The Respondent argued that the Complainant had been absent on sick leave for 2 years and 5 months and the Medmark report clearly deemed the Complainant “unfit indefinitely”. The Complainant was made aware that dismissal was being contemplated if she was not in position to provide an indication from her doctor as to when would she be in a position to return to work. The Complainant could have but did not submit any medical evidence to contradict the Medmark report and for consideration before the decision to dismiss was made. I note that the Complainant relies on the letter from the Consultant which was presented at the appeal hearing. However, the letter does not give any indication as at the possible return to work date except a very vague “will be fit to return to work in the coming months”. It has to be noted that a day previously the Respondent received a further 6 months sick cert from the Complainant.

I am satisfied that by keeping the Complainant’s position open for a period of 2 years and 5 months before the decision to dismiss was made the Respondent acted in a reasonable manner towards the Complainant. I find that there was no obligation on the Respondent to keep the position of the Complainant open indefinitely in circumstances where her doctor was not in a position to give any indication as to her possible return to work date.

Having carefully considered the evidence before me I find that the Complainant was not subjected to a discriminatory dismissal on the grounds of her disability contrary to the Acts.

Reasonable accommodation

The second element of the complaint 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.

There was no dispute between the parties that due to her illness the Complainant was certified unfit to perform her duties from 22^nd November 2015 until the date of her dismissal. As outlined above, I am satisfied that the Respondent referred the Complainant for a medical review on two occasions, it engaged with the Complainant and her representative to obtain updates in relation to her medical condition and to try to ascertain if, and when, she would be in a position to return to work. I am therefore satisfied that the Respondent was informed and in full possession of material facts regarding the Complainant’s medical condition.

The evidence before me shows that the Complainant was not fit to return to work in any capacity throughout this period given the nature of her medical condition. I note that none of the three specialists (Medmark doctor, GP and Consultant) who examined the Complainant made any recommendation in relation to the provision of reasonable accommodation for the Complainant’s disability. There was no suggestion of suitable alternative.  Based on the medical reports available to the Respondent it is also evident that the Complainant would not have been in a position to return to work or undertake any duties prior to the termination of her employment regardless of any special measures or facilities which could have been put in place to accommodate her disability.

Therefore, having regard to the ongoing nature of the Complainant’s medical condition and in the absence of any confirmation from her doctor as to when she would be deemed fit to return to work, I am satisfied that it was not possible for the Respondent to put any special measures or facilities in place which would have rendered her capable of performing her duties or a modified variation thereof. Accordingly, 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 find that:
The   Respondent did not discriminate against the Complainant on the disability ground pursuant to Sections 6(2)(g) of the Acts, in respect of discriminatory dismissal contrary to Section 8(6) of the Acts, and
The Respondent did not fail in its obligation to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts.

Employment Equality Acts- discriminatory dismissal- disability-reasonable accommodation