Complainant

Respondent

Anonymised Parties

A Veterinary Assistant

A Regulatory Authority

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-00018399-001

10/04/2018

The Complainant commenced employment with the Respondent in or around 1998 as a veterinary assistant on a part-time contract of 120 days per annum. The Complainant contends that the Respondent has subjected her to discrimination by reason of its failure to make reasonable accommodation for her disability in as much as the employer has refused to allow her to train for judging work, which work would have significant positive consequences for her employment. The Respondent disputes the claim and contends that it has acted in accordance with the medical advice available in relation to the Complainant’s medical conditions and put in place appropriate measures in order to facilitate her continued participation in employment.

The Complainant has applied internally in the workplace since 2008 to be trained for the carrying out of judging work but has always been denied this opportunity. If this was granted to her she would have become a full-time employee as the extra days involved in judging would have given her the necessary 170 days which is classed a full-time contract in this employment.

In 2008 four new part-timers were employed and all began in the veterinary unit, as was the custom and practice in the workplace. Each of these employees has progressed to do judging work, specifically Ms. A (85 days judging), Mr. B (85 days judging), Mr. C (Stewards Clerk and Clerk of Scales) and Mr. D (starter and 25 days in veterinary box). In 2014 Mr. E started in the veterinary unit and is now a Judge.

In 2015 an advertisement was placed in a newspaper for a Veterinary Assistant and Ms. F and Ms. G started working in the veterinary unit and progressed to training in judging in scales within 2 months. Both still work in the veterinary unit and scales.

The Complainant has a disability insofar as she has had Psoriatic Arthritis for approx. 20 years and was diagnosed with Rheumatoid Arthritis on or about 7 years ago. This has had a significant impact on the small joints on her hands, wrists and elbows and her GP requested by letter dated 2 November, 2015 that her duties be focussed on microchipping and vaccination as opposed to the more physical task of taking urine samples from horses before the 2016 roster was prepared. The Complainant submits that the GP’s request was ignored by the Respondent.

The consequence of this failure to accommodate the GP’s request was that the days the Complainant was rostered to do sampling work she would telephone the roster manager who, rather than switching duties for that day, would remove the Complainant from the day’s work and replace her with somebody else. This caused a significant loss of earnings for the Complainant who asked her Consultant, Dr. H, to write to the Respondent and explain the situation but his representation was also ignored.

Mr. X, Chief Executive of the Respondent, wrote to Dr. H on 8 April, 2016, 28 April, 2016, 13 July, 2016, 10 August, 2016 and 15 November, 2016 enquiring about the possibility of medication assisting the Complainant to carry out the full range of duties including sampling duties. It was during this period that the Complainant contracted skin cancer necessitating severe surgery to remove it on 7 March, 2016. Mr. X wrote to the Complainant on 26 April, 2016 concerning the letter he had received from Dr. H.

In December, 2016, the Complainant raised a number of issues relating to her employment including the question of being given the opportunity of training as a Judge and to carry out judging work. By letter dated 18 January, 2017, Mr. X informed the Complainant that her suitability would be assessed when she carried out an Occupational Health Assessment. Two such assessments were carried out on the Complainant on behalf of the Respondent in February, 2017 and October, 2017. The Assessment Report of 15 February, 2017 confirmed that the Complainant was fit “for the vast majority of her work duties. In my opinion, she is unfit for the task of taking urine samples since this requires flexion and extension of the wrist joints …. I expect she will be fit to perform this task once she has recovered from the proposed operations …. I believe [the Complainant] is fit for all other aspects of the role of veterinary assistant”. A further report was compiled in October, 2017 with similar recommendations that the Complainant had a difficulty with taking urine samples because of wrist and hand pain and weakness caused by carpel tunnel syndrome.

The Complainant followed up with a meeting on 10 January, 2018 with Ms. Y, HR Advisor for the Respondent, who advised that she would have to have impending surgery carried out first, return to “full duties”, and attend a further health assessment in order to be considered “for training in this role”. The Complainant followed up by e-mail dated 31 January, 2018 again enquiring as to why her request to be trained as a judge was not granted. Ms. Y in an e-mail to the Complainant on 31 January, 2018 stated it “was not feasible to change duties until such time as they are fully fit for work. We are aware of your request and once you have your surgery over and you are certified as fully fit for work, then we will be more than happy to consider your request again at that stage”.

The Complainant submits that she has been kept on a part-time contract for 21 years and has seen many individuals come into the employment of the Respondent, receive training for Judging work, and proceed to be appointed as Judges. It was submitted that the Respondent was obliged to make reasonable accommodation to the Complainant (i) to have access to employment (ii) to participate or advance in employment, or (iii) to undergo training unless the measures would impose a disproportionate burden of the employer.

The Complainant submits that the insistence of the Respondent at the meeting on 10 January, 2018 and in the e-mail dated 31 January, 2018 that she could only be considered for training in the work required of a Judge when she was fit for “full duties” and “fully fit tow work” is in contravention of the Respondent’s obligations under Section 16 of the Acts. Moreover, the letters from Mr. X, Chief Executive, on 8 April, 2018 and 26 April, 2018 are indicative of the Respondent’s preoccupation with the Complainant being able to perform the “full range of duties” and “sampling duties”.

The Complainant further submits that the Respondent’s attention and focus should have been on the appropriate measures and reasonable accommodation as apprehended by Section 16 of the Acts which could have been taken to allow the Complainant to carry out other duties including Judging rather than making enquiries as to whether medication would have allowed her resume urine sampling.

The Complainant relied upon the following cases in support of its position, namely: ADJ-00001672, ADJ-00000557, DEC-E2014-066 and Nano Nagle School -v- Daly [2018] IECA 11.

In summary, the Complainant submits that the decision by the Respondent to repeatedly refuse to allow her avail of training for Judging work by reason of her inability to carry out the full range of duties of her job is discriminatory. The appropriate measures required of the Respondent to provide reasonable accommodation for the Complainant to take up judging work would have incurred a negligible cost, if any. Clearly, the training of an employee in another area of activity has benefits for the employer thus it is arguable that the training would have been cost neutral. It was submitted that the work involved in judging, specifically calling out race results at race meetings and so forth, involves little or no physical prowess and would have been ideal for an employee with a disability linked to use of the wrists, carpal tunnel etc.

The Complainant commenced employment with the Respondent on 1 January, 1999 and was initially employed as a veterinary assistant in the research unit and carried out some veterinary assistant’s work on the racecourse. The research unit closed in 2011 and thereafter all of the Complainant’s work was on the race course at point to points. The Complainant was issued with a contract for 120 days per year in April 2015. All extra days worked are paid at the appropriate rate. The pay for judges and veterinary assistants is the same and the rate of pay an employee receives for carrying out a duty is based on their salary. Employees are trained across duties to carry out a number of different duties at given times depending on the needs of the organisation.

On 27 October, 2015, the Complainant informed the Respondent that she would be unable to carry out sampling duties at a designated race course that weekend due to a medical condition. The Complainant asked that she be allocated microchipping duty and this request was granted. On 2 November, 2015, the Respondent received a letter from the Complainant’s GP outlining details of her medical condition and recommending when the new roster was being prepared that she be scheduled for microchipping work. Rosters are prepared in December for the following year.

On or about 2 November, 2015, on foot of a recommendation received from the Complainant’s GP, Mr. X (Chief Executive) asked the Roster Manager to take the Complainant out of all sampling duties and swap them for a microchipping duty where there was a microchipping duty scheduled on the same day. The Respondent submits that as there wasn’t always a microchipping duty at each fixture it wasn’t always possible to swap the Complainant unless both duties were rostered. Therefore, it is possible that the Complainant lost out on some work. However, to minimise losses to the Complainant, the Roster Manager created additional microchipping duties at some fixtures within the parameters of the available budget.

On or about 19 November, 2015, Mr. X (Chief Executive) had a discussion with the Complainant suggesting that a Functional Capacity Evaluation (FCE) be carried out. The Complainant confirmed her willingness to have the FCE. However, this assessment was not carried out at that juncture after the Respondent received a letter from the Complainant’s GP on 2 December, 2015 stating that it was not an appropriate time for the FCE to be carried out as she was due to commence Biological Therapy.

On 4 April, 2016, the Respondent received a letter from the Complainant’s Consultant, Dr. H, stating that it was “inappropriate for the Complainant to carry out sampling duties any longer”. The Respondent subsequently engaged with both the Complainant and Dr. H at regular intervals thereafter in relation to the Complainant’s condition and requested that it be kept up to date on her progress. On 22 November, 2016, the Respondent was informed by Dr. H that the Complainant now had a separate issue regarding severe carpal tunnel syndrome and that it was causing ongoing significant problems with hand function and in particular grasping and holding. Dr. H was unable to give a date for a further review.

On 6 January, 2017, the Respondent issued a memo to all veterinary assistants confirming that the arrangements in place for the swapping of sampling and microchipping duties would continue. On 8 February, 2017, the Complainant was referred for an occupational health assessment which was carried out by Dr. G. In the report following this assessment, Dr G stated that “modified duties will be required for a year” and that if “the employer is unable to reasonably accommodate [the Complainant] with modified work duties she will require sick leave until she has recovered from surgery”. On 1 March, 2017, Mr. X (Chief Executive) wrote to the Complainant acknowledging the occupational health assessment and confirming that the Respondent would facilitate her continuing in her role without any requirements to take urine samples pending the carrying out of any surgery and subsequent review by Dr. G.

On 1 March, 2017, the Respondent issued a further memo stating that the arrangements regarding the swapping of duties would continue until at least the end of the year. On 26 September, 2017, a further occupational health assessment was carried out on the Complainant by Dr. G which indicated that her condition was getting worse and that she was still awaiting surgery. Dr. G also indicated that she wished to review the Complainant when she had recovered from surgery to monitor her progress and give further advice.

On 10 January, 2018, the Complainant met with the Respondent’s HR Advisor, Ms. Y, and requested that she be made a full time employee and afforded a revised contract for 170 days per week on the basis of the longevity of her service. The Respondent wrote to the Complainant on 5 February, 2018 and confirmed that it was fulfilling her contractual obligations of 120 days per year. It was explained to the Complainant that the Respondent did not make appointments on the basis of seniority but rather on skills/knowledge and suitability for a role. The Complainant was advised that she could apply for any full-time positions as they arose in the future and that the Respondent would be prepared to discuss skills development and training with a view to enhancing her prospects of success. The Respondent submits that the Complainant has subsequently been trained for Post-Licensing Inspections and Out-of-Competition testing and now performs these duties. The Respondent disputes the Complainant’s contention that she has been kept on a part-time contract for 21 years. The Respondent submits that the Complainant is a full-time employee who works a minimum of 120 days per year as per the terms of her contract of employment.

The Respondent disputes the Complainant’s contention that she has applied internally since 2008 to be trained as a judge, and that if she was trained, she would have now become a full-time employee. The Respondent disputes that the alleged refusal to facilitate the Complainant with a Judging role amounts to a failure to provide her with reasonable accommodation. The Respondents submits that the organisation did not have a requirement for additional Judges during the period from 2017 to 2019 and that it didn’t train anyone in this area during that period.

The Respondent disputes the Complainant’s claim that it has failed to provide her with reasonable accommodation in the workplace as a person with a disability. The Respondent, in the first instance, disputes the Complainant’s contention that her medical condition constitutes a disability. Notwithstanding the foregoing, the Respondent submits that it has made reasonable accommodation to allow the Complainant have access to employment, to participate in employment and to undergo training, notwithstanding that in some cases it has placed additional costs on the organisation due to her not being able to perform the full range of duties. The Respondent submits that, at no stage did its Occupational Health Advisor advise that the Complainant had a disability, the advice was to give her modified duties as she had surgery and recovered from same. The Complainant remains on modified duties as she is still awaiting surgery and the Respondent continues to support her in that regard.

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

The definition of a disability has been interpreted in an extremely broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt Boligselskab[1] where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.  

In the instant case, it was not in dispute that the Complainant has been diagnosed with Psoriatic Arthritis, Rheumatoid Arthritis and Carpal Tunnel Syndrome by her professional medical advisors. The Respondent disputes that the Complainant’s medical conditions constitute a disability and contends that, at no stage, did its Occupational Health Advisors confirm that she had a disability. In considering this matter I have taken cognisance of the various medical reports which were adduced in evidence by the parties and I note that the Complainant’s GP indicated in a letter to the Respondent on 2 November, 2015 that “On assessment of [the Complainant] she has a significant disability due to her hands …. ”. Having regard to the evidence adduced, it is clear that the Complainant’s arthritis has had a significant impact on her ability to fully participate in her professional life over the last number of years. In the circumstances, I find that the Complainant’s medical condition clearly constitutes a disability within the meaning of Section 2(1)(c) of the Acts.

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

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court elaborated on the interpretation of Section 85A in Melbury v. Valpeters EDA/0917 where it stated that Section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Section 6(1) of the 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 is not or is a person with a different disability”.

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking his/her duties.

The Complainant contends that the Respondent failed to provide her with reasonable accommodation in accordance with its obligations under Section 16 of the Acts. More specifically, the Complainant contends that the Respondent’s failure to provide her with reasonable accommodation has manifested itself by virtue of its refusal to allow her to carry out, or train for, other duties including Judging work. The Respondent disputes the claim and contends that it has acted on the medical advice available in relation to the Complainant’s medical conditions and put in place appropriate measures in order to facilitate her continued participation in employment.

In the case of Nano Nagle School -v- Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of Section 16 of the Acts. In this judgement MacMenamin J. held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

In this judgement MacMenamin J. has also provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts. It was held at paragraph 105 of this judgement that: “I respectfully disagree with the Court of Appeal's conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act”. In essence, it was held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act.

In the instant case, it was not in dispute that the Complainant is currently, and has, at all material times relevant to this complaint, been employed by the Respondent as a Veterinary Assistant. It is also common case that the core tasks associated with her role include sampling and microchipping duties. It is clear that the Complainant had been carrying out the full range of duties associated with her role prior to November, 2015 when the Respondent was provided with a medical report from the Complainant’s General Practitioner which suggested that she would require accommodations to her work on account of her disability. I am satisfied that this was the first occasion that the issue of reasonable accommodation had arisen in the context of the Complainant’s employment with the Respondent, notwithstanding the fact that she had been diagnosed with arthritis a number of years beforehand. I note that the Complainant’s GP recommended at that juncture that she be scheduled for microchipping duties, as opposed to sampling work, when the roster was being set for the following year in order to avoid an aggravation of the symptoms associated with her disability.

Having regard to the evidence adduced in the present case, I am satisfied that the Respondent undertook a process orientated approach in terms of the manner which it dealt with the Complainant’s disability after it was made aware of her medical condition and the requirement that appropriate measures be put in place to facilitate her continued employment in her role as a veterinary assistant. It is clear that the Respondent embarked upon a process of consultation and fully engaged with both the Complainant and her medical advisors from November, 2015 in order to fully establish the facts in relation to her disability and the impact it had on her ability to carry out the full range of duties associated with her role. In this regard, I note that the Respondent engaged on a regular basis with both the Complainant’s GP and her Consultant in relation to her medical condition and also arranged to have her assessed on two separate occasions by its own Occupational Health Advisors (namely in February, 2017 and October, 2017).

Having regard to the medical reports and advice which were provided to the Respondent and adduced in evidence, it is clear that the Complainant was unable to carry out one of the core duties associated to her role, namely sampling duties, as a result of her disability and recommendations were made by the relevant medical professionals that she be accommodated by the removal of such duties. I am satisfied that the Respondent acted on the basis of this medical advice and put measures in place to accommodate the Complainant by removing the sampling duties from her role, notwithstanding the fact that the implementation of such a measure had implications for the organisation both in terms of cost and operational difficulties. In this regard, I note the Respondent’s uncontested evidence that it has continued to provide the Complainant with 120 days per year in accordance with the terms of her contract of employment, irrespective of the fact that she has not been medically fit to carry out all of the core duties associated to her role as a veterinary assistant. Having regard to the evidence adduced, I find that the Respondent has provided the Complainant with reasonable accommodation and that the measures which it has put in place have, in fact, facilitated her continued participation in employment in her designated role as a veterinary assistant.

The central plank of the Complainant’s claim relates to the argument that the Respondent’s refusal to allow her to train and work in an alternative role as a Judge amounts to a failure to provide reasonable accommodation. In effect, the Complainant is making the argument that there was a requirement on the Respondent to facilitate her in a completely different role within the organisation than that which she was contracted to perform in order to comply with its obligations under Section 16 of the Acts. The Complainant was employed by the Respondent as a veterinary assistant and she contends that there was an obligation on the Respondent to provide her with training, and subsequent employment in such a role, in order to provide reasonable accommodation for her disability. I do not accept that there is any basis in law to substantiate the Complainant’s position on this issue. It is clear from the Supreme Court judgement in the Nano Nagle case that the provision of reasonable accommodation within the meaning of Section 16 of the Acts does not extend so far as to place an obligation on an employer to re-designate or create a different job to facilitate an employment with a disability. In this regard MacMenamin J. further held at paragraph 89 that: “…. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden …. The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.”

Notwithstanding my findings above on this point, I accept the Respondent’s evidence that there was no requirement within the organisation for additional Judges at the material time in question and therefore it was possible, in any event, to facilitate the Complainant’s request for such an accommodation. However, I note that the Respondent has facilitated the Complainant to obtain training in other operational areas within the organisation in the latter part of 2018 and that she is now carrying out duties in such areas.

Having regard to the foregoing, I am satisfied that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts. Accordingly, I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the Acts and that her complaint fails.          

I find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts. Accordingly, I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the Acts and that her complaint fails.            

Employment Equality Acts, 1998 to 2015 – Disability – Section 16 - Reasonable Accommodation – Appropriate Measures