Complainant

Respondent

Anonymised Parties

A Manufacturing Team Member

A Manufacturing Company

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-00015965-001

23/11/2017

The Complainant has been employed by the Respondent as Manufacturing Team Member since 11 August, 2005. The Complainant was absent from work due to depression from 4 November, 2014 to 29 August, 2015 save and except for approx. five days in January, 2015. The Complainant has been absent from work since August, 2017 and she contends that this is due to the Respondent’s failure to provide reasonable accommodation to facilitate her return to work. The Complainant claims that she has been subjected to discriminatory treatment by the Respondent on the grounds of disability in relation to her conditions of employment and that the Respondent has failed to provide her with reasonable accommodation pursuant to Section 16 of the Employment Equality Acts.

The Respondent disputes the claim that the Complainant has been subjected to discriminatory treatment on the grounds of disability in relation to her conditions of employment or that there has been any failure to provide her with reasonable accommodation pursuant to Section 16 of the Acts. The Respondent submits that the Complainant is not capable of performing the core elements of her role as a Manufacturing Team Leader. The Respondent contends that the duty to provide reasonable accommodation does not obligate it to create a new role for the Complainant or to remove the core duties of the job for which she has been employed such as to substantially alter the character of that job.

The Complainant submits that the instant proceedings arise by way of a second complaint submitted to the WRC where the Complainant seeks redress in respect of the Respondent’s continued failure to provide her with reasonable accommodation for her disability and/or discriminatory treatment in respect of her conditions of employment.

It was submitted that an Adjudication Officer decided in the Complainant’s previous complaint on 23 March, 2017 that the Respondent discriminated against her on the disability ground by failing to provide her with reasonable accommodation pursuant to its obligations under Section 16 of the Acts (Decision No. ADJ-00000557 refers). The Complainant confirmed that the period of time relevant to the instant complaint relates to the period from 18 October, 2017 to the date of the hearing on 2 July, 2019.

The Complainant submits that her role as a Manufacturing Team Member requires working on a five-cycle shift rota which includes a combination of day shifts, evening shifts and night shifts midweek and at weekends and 12 hour shift patterns. The Complainant has been working the five-cycle shift since she commenced employment in 2005.

The Complainant submits that she suffers from the disability of depression and was medically advised by her own medical experts and those of the Respondent in June, 2017 that the “five cycle swing shift” pattern of her employment was adversely affecting her mental health and that she was unfit for same.

The Respondent’s Occupational Physician, Dr. L, reported to the Complainant’s superior on 23 August, 2017 that she would be fit to return to “day” shifts. The Complainant was offered weekend (Friday, Saturday and Sunday only) day time shifts in or around 9 November, 2017 by the Respondent. The Complainant’s GP, Dr. F, wrote to the Respondent on 25 September, 2017 advising against this as working at weekends only was not suitable for her mental health and medical needs.  

The Respondent through a series of meetings and follow up correspondence from 9 November, 2017 to 26 March, 2018 refused to accept Dr. F’s medical advice. The Respondent also refused to allow the Complainant to return to work. She was advised by Mr. A, HR Director, that her sick pay plan ended on 2 November 2017 and he continuously referred to her as being “absent” from her employment and repeatedly requested medical certificates for same.

It was submitted that at all times, the Complainant was clear that she was not on sick leave but was prevented from returning to work and had a disability and was not sick. In correspondence to the Complainant dated 26 March, 2018 from Mr. A, HR Director, he concludes “it seems at this stage you are no longer capable of performing your role. Unfortunately, we cannot hold your position open indefinitely and need to agree a return to work date as soon as possible”. Following a further review by the Respondent’s Occupational Physician, Dr. M, on 13 June, 2018 it was disclosed that the Complainant was suffering from Neurocardiogenic Syncope. Dr. M was of the view that “many of the symptoms associated with Neurocardiogenic Syncope would also impact an individual’s well-being”. Dr. M’s report very clearly outlined the terms on which the Complainant could return to work. It was submitted that the Respondent can provide reasonable accommodation to facilitate the Complainant’s return to work on these terms, particularly in light of the size and scale of the company.

The Complainant submits that she could have been facilitated in a number of alternative roles within the company which would have been suitable to her by way of reasonable accommodation in relation to her disability. However, the Complainant claims that the Respondent either didn’t make her aware of the availability of these roles or failed to consider her as a suitable candidate because of her attendance record.

The Complainant submits that she has at all times engaged the treatment advised by her medical attendants. Notwithstanding this and various other reports, it is submitted that the Respondent has failed to seek to reasonably accommodate the Complainant. The Complainant remains out of work and a result is without an income. It is submitted that this treatment constitutes discrimination pursuant to the Acts.

Furthermore, it is submitted that the Respondent failed, refused or neglected to reasonably accommodate and/or make reasonable enquiries into how to reasonably accommodate the Complainant, including but not limited to exploring the possibility of daytime weekday shifts.

The Respondent submits that the Complainant is employed as a Manufacturing Team Member to perform a five-cycle shift rota, and essential element of which is night, evening and 12-hour day shifts (60% of which is spent standing and 40% of which is spent sitting). The Complainant works in an environment with large machinery and equipment and hazardous chemicals. The Complainant, by reason of her medical condition, is unfortunately unable (on a long term/indefinite basis) to: perform a five-cycle shift rota; work night shifts; work evening shifts; work 12 hours shifts, day or night; spend more than 25 % of a typical day shift standing; lift more than 5kg; and work as a lone worker.

The Respondent submits that the Complainant is, by reason of her medical condition, at risk of sudden fainting and collapse and it is clear that she is unable to perform the core duties of her role. The Respondent submits that it has at all times sought to provide the Complainant with reasonable accommodation in accordance with the medical evidence available to it at the material times in question. In seeking to reasonably accommodate the Complainant’s disability, the Respondent has made full and adequate enquiries as to the nature and extent of her disability.

It is submitted that the obligation to provide reasonable accommodation can arise only in respect of periods where the medical evidence indicated that the Complainant was not fit to carry out her normal duties due to her disability. In this regard, it is noteworthy that the Complainant was certified as fully fit to be at work from the time of her return to work in August, 2015 until 14 June, 2017 when she was certified as unfit to perform the night shift. During this period, the Complainant was referred to Occupational Health a total of five times and on each time she was certified as fit to continue her normal duties. The Complainant did not provide any medical evidence to the contrary during this period. Where the Complainant was certified as fully fit to perform her normal duties, there was no obligation on the Respondent to provide her with reasonable accommodation.

The Respondent submits that it made sufficient, comprehensive and regular inquiries as to the nature of the Complainant’s illness before deciding what action, if any, to take. The Respondent did not take any action that was contrary to the medical advice provided and obtained. When the Complainant was certified as unfit to perform the night shift, the Respondent offered her reasonable accommodation, namely an offer to work days shifts during the weekends, which she declined. This was a daytime role that the Respondent was willing to create to accommodate the Complainant, and it was limited to weekends as that was the only time when the Respondent had operational requirements for an additional role. It was only in March 2018 that the Complainant provided medical evidence to suggest that working the weekend shift would aggravate her condition. At no stage before then did the Complainant provide medical or other evidence to support her contention that working weekend day shifts would not accommodate her disability (as it would isolate her at weekends). The Respondent also made other offers of reasonable accommodation to the Complainant such as a temporary role in Probe/IPD.

The Respondent submits that prior to Dr. M’s report which was issued in June, 2018, it was not aware and had no knowledge that the Complainant was suffering from the medical condition of “Neurocardiogenic Syncope”. Dr. M in his report described that this condition is where an individual’s heart rate, their blood pressure and the neurological control to maintain correct functioning of the system fails. Patients can experience low blood pressure for prolonged periods resulting in fatigue/collapse. Dr. M outlines that as time has progressed, the condition may have become more prevalent/problematic, resulting in a gradual reduction in health over time for the Complainant. Dr. M states in this report that the Complainant’s Neurocardiogenic Syncope condition will remain unresolved and difficult to manage long term. Even though the Complainant is on treatment for this condition, she is only experiencing marginal health benefit. Dr. M further states that the Complainant will experience reduced health issues long term.

The Respondent submits that any reasonable accommodation for the Complainant must now be considered in conjunction with Dr. M’s recommendations in his report. The core duties which the Complainant is employed to do require her to:

(a)    Work a five-cycle shift pattern which includes 12-hour day, evening and night shifts and shifts over the weekend;

Dr. M’s report is explicitly clear that the Complainant is not fit to work the five-cycle shift pattern on a long term/indefinite basis and the Complainant is not fit to work evenings or nights. Dr. M’s report provides further that the Complainant is not fit to work a 12-hour shift, day or night. Dr. M’s report provides further that the Complainant is fit to work an eight hour shift only, starting between 8 am and 9 am.

(b)    Spend 60% of a shift standing and 40% of a shift sitting;

Dr. M deemed that the Complainant was more suited to a sitting role due to her existing medical condition. Dr. M stated that the Complainant should spend in the region of 75% or more in a seated activity at work which equates to six hours of an eight-hour shift. Dr. M advised that the Complainant can stand and walk but for short periods and this should be spread out throughout her shift and ideally not altogether. Within the Respondent’s manufacturing floor where the Complainant carries out her duties, chairs are not positioned at every piece of equipment or machine as the majority of manufacturing equipment has to be operated from a standing position. The Complainant is required to manually change chemicals up to four times a shift from a standing position. While every precaution regarding health and safety is taken in handling chemicals and wearing protective clothing, there is a substantial risk to the health and safety of the Complainant and her colleagues if she were to faint or collapse while changing chemicals. On review of Dr. M’s recommendation that the Complainant should spend in the region of 75% of her time or ore in a seated position, together with a review of her daily tasks, the Respondent has identified that the Complainant performs eight out of nine of her essential tasks from a standing position. It is not possible for the Complainant in her present role to spend six hours at a seated position as the equipment and observation of the product while on the equipment are completed from a standing position.

(c)     Work in a manufacturing environment where the majority of floor space is occupied by large machinery, equipment and hazardous chemicals that are classed as corrosive irritant and/or flammable.

Dr. M outlines in his report that patients with Neurocardiogenic Syncope experience low blood pressure for prolonged periods resulting in fatigue/collapse. This is of major concern to the Respondent given the work environment, equipment and chemicals that the Complainant works with in her role. The Complainant works in a manufacturing environment where the majority of floor space is occupied by large machinery and equipment and with hazardous chemicals that are classed as corrosive, irritant and/or inflammable. Working in this type of environment poses a real and substantial risk to the Complainant’s health and safety, and to that of her colleagues, particularly if she were to faint or collapse while at work.

(d)    Lift boxes of silicon wafers (which contains 25 silicon wafers and weighs 3.4 kg including the storage box);

The Complainant would typically lift a box of silicon wafers numerous times during the shift, in order to load and unload the box of wafers onto the cluster machine so that the product can be processed. The lifting and loading/unloading of boxes of silicon wafers is an essential element of the Complainant’s role. There is a risk that if the Complainant were to faint or collapse while carrying a box of silicon wafers that it could result in serious injury to her, coupled with damaged product. Further, depending on the stage of the manufacturing process is at, the cots of damage to one box of silicon wafers could be in the region of €60,000.

(e)    Work Alone

Dr. M states that the Complainant is not fit to work alone. The Complainant works on a team of six MTMs. This team of six MTMs is split into two smaller teams of three MTMs, and each MTM is paired with another MTM whereby they cover each other’s tasks and equipment while they are on breaks. All tasks are completed on an individual basis by the MTMs and, depending on the equipment that they are operating, they may not always be in close proximity to each other. There are times when the Complainant could be in one area of the manufacturing floor on her own using a piece of equipment or a machine, and she could find herself alone during break times when there are less MTM’s on the manufacturing floor. While there are other operatives on the manufacturing floor, it would be very difficult for the Respondent to guarantee that the Complainant is not on her own at any stage during her shift.

The Respondent submits that given the threat of the Complainant’s sudden fainting and collapsing at work, it is impossible for it to initiate a reasonable adjustment that will mitigate the risk and ensure the Complainant’s health and safety and the health and safety of those working alongside her, while she is at work. It would also be extremely difficult to guarantee that the Complainant is not alone at any time when she is at work. There are likely to be times during the shift where the Complainant will be alone (e.g. walking to and from the building, comfort breaks etc.)

The Respondent submits that excluding the two recommendations from Dr. M’s report that the Complainant cannot work alone and that her condition puts her at risk of sudden fainting or collapse, the type of reasonable accommodation that would be required to accommodate her with an eight-hour day shift starting between 8/9 am (as recommended by Dr. M) would involve the creation of a new and reduced role for the Complainant, and one that can be performed from a seated position. Such a new reduced role would involve the Complainant not performing the essential tasks of her role, of loading and unloading the cluster machine, and changing chemicals.

The Respondent submits that the duty to reasonably accommodate the Complainant does not go so far as to require it to create an entirely new role for her, or to remove the core duties of the job for which she has been employed, such as would substantially alter the character of the job.

The Respondent submits that due consideration has been given to any possible alternative roles which may be available in other departments outside of the manufacturing area with a view to reasonably accommodation her in line with Dr. M’s report. The types of departments that the work pattern of an eight-hour shift starting at 8/9 am are the following; Human Resources, Accounts and Purchasing. A number of other roles such as security, catering and reception are outsourced to a third-party contractor which provides those services to the Respondent.

Having reviewed the roles that became available in the Company between August 2018 and March 2019, the Respondent has found that the majority are engineering roles which require a third level qualification. In addition, there were two manufacturing supervisor roles, two manufacturing operative roles and two equipment maintenance roles. The Respondent submits that the Complainant does not have the necessary skillset, qualifications or experience required for the roles that have become vacant within the Company during this period, save for the Human Resources, Business Partner and HR Administrator roles which were at the recruitment stage at the date of hearing.

The Respondent submits that there is no way the Complainant can be reasonably accommodated in line with the recommendations in Dr. M’s report. The central reality in the instant case is that the Complainant cannot perform her role of MTM and unfortunately no reasonable accommodation can change this.

The Respondent relied upon the following cases in support of its position, namely: Nano Nagle School -v- Marie Daly [2018] IECA 11, Humphreys -v- Westwood Fitness Club 2004 15 ELR 296, Mr. d -v- A Government Department DEC-E2008-011, Adam Herzyk -v- Excellence Limited EDA1815, Southern Health Board -v- Mitchell [2001] DEE011, Minaguchi -v- Wineport Lakeshore Restaurant DEC-E2002-020, Department of Defence -v- Tom Barrett EET081 and Graham Anthony Co. -v- Margetts [2003] EDA038.

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 ValpettersEDA0917 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”.

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 BoligselskabC-335/11 and C337/11  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 a number of medical conditions including depression, anxiety and Neurocardiogenic Syncope. It was not in dispute that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint. Having regard to the evidence adduced, it is clear that the Complainant’s medical conditions have 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 conditions clearly constitute a disability within the meaning of Section 2(1)(c) of the Acts.

Accordingly, the issues for decision in this case are (1) whether the Respondent has subjected the Complainant to discriminatory treatment on the grounds of disability in relation to her conditions of employment 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.

I heard extensive oral evidence from the Complainant and the Respondent’s Production Manager (Mr. A) in support of their respective cases at the hearing of this complaint. In reaching my decision, I have taken into account all of the evidence and submissions, both written and oral, made by the parties.  

Discrimination on Disability Ground

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".

The Complainant contends that she was subjected to discrimination by the Respondent on the grounds of her disability in relation to her conditions of employment. In order to make out a claim of direct discrimination under the Acts, the Complainant must show that the treatment complained of was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon.

Having carefully considered the written and oral evidence in relation to this complaint, it would appear that the Complainant has conflated the claims in relation to direct discrimination on the grounds of disability in relation to her conditions of employment and the claim in relation to a failure by the Respondent to provide reasonable accommodation within the meaning of Section 16 of the Acts.

Having regard to the foregoing, I am satisfied that I have not been presented with any evidence to support a claim of direct discrimination on the grounds of the Complainant’s disability. Therefore, I am satisfied that there is no evidence of the Complainant being treated less favourably by the Respondent on the grounds of her disability. Accordingly, I find that the Complainant has failed to establish a prima facie case of direct discriminatory treatment on the grounds of disability in relation to her conditions of employment.

Reasonable Accommodation

The next element of the Complainant’s complaint that I must consider relates to the claim that the Respondent failed to provide her with reasonable accommodation in accordance with its obligations under Section 16 of the Acts.

Section 16(3) of the Employment Equality Acts provides:

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

Subsection (4) provides:

“(4) In subsection (3)—

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

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

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

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

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.

It is necessary at the outset of my deliberations on this issue to clarify the material period of time relevant to the instant complaint. I note that the Complainant referred a previous complaint to the WRC and that the Adjudication Officer held in a decision dated 23 March, 2017 that the Respondent had failed to provide reasonable accommodation to her in respect of the circumstances relating to that specific complaint. The Complainant confirmed at the oral hearing that the material reference period relevant to the instant complaint relates to the period from 18 October, 2017 onwards and she claims that the failure to provide reasonable accommodation was ongoing thereafter. I am therefore satisfied that the scope of my investigation in relation to this complaint is confined strictly to the Respondent’s alleged failure to provide the Complainant with reasonable accommodation during the period from 18 October, 2017 to 2 July, 2019 i.e. the date of the hearing.  

The Complainant contends that the Respondent has 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 provide her with a suitable permanent role on the day shift as an alternative to working on the five-cycle shift rota. The Respondent disputes the claim and contends that the Complainant is medically unfit to perform the core duties of her role as a result of her disability. The Respondent contends that the duty to provide reasonable accommodation does not obligate it to create a new role for the Complainant or to remove the core duties of the job for which she has been employed such as to substantially alter the character of that job.

It was not in dispute that the Complainant has, at all material times relevant to this complaint, been employed by the Respondent as a Manufacturing Team Member and that she was required to perform a five-cycle shift as part of her role. It was common case that the five-cycle shift is structured in such a manner which involves working a combination of day shifts, evening shifts and night shifts during midweek and at weekends, and a 12-hour shift pattern. It is clear that the situation in relation to the Complainant’s medical condition and its consequent impact on her ability to perform the five-cycle shift has been evolving over the last number of years. The Complainant has been assessed on numerous occasions during the material period in question by both the Respondent’s Occupational Health Advisors and her own GP in relation to her fitness and ability to perform her role.

I have identified two key medical reports which are of fundamental significance in relation to my deliberations on the issue of the provision of reasonable accommodation to the Complainant in the context of the material period in question relevant to this complaint. The first key medical report relates to a report from the Complainant’s GP, Dr. F, on 14 June, 2017 when she was certified medically unfit to perform night work and as a result she has been unable to perform the five cycle shift from that juncture onwards. I note that it was at this juncture that the Complainant requested the Respondent to provide her with a suitable “day job” in order to reasonably accommodate her disability. The second key medical report is from the Respondent’s Occupational Health Physician, Dr. M, following an assessment of the Complainant on 13 June, 2018, in which it was advised that she had a further medical condition (namely Neurocardiogenic Syncope) which had not been previously diagnosed prior to that juncture. It is the Respondent’s position that following a review of Dr. M’s report, and when taken in conjunction with the nature of the Complainant’s work environment, that she is not capable of carrying out her job as an MTM, even if she was to be accommodated with an eight-hour day shift.

Therefore, the question that I must decide is whether or not the Respondent failed to comply with its obligations under Section 16 of the Acts to provide reasonable accommodation to the Complainant in the circumstances of the present case having regard to the nature of her disability and the medical information that was available to it during the material period in question.

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.

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 after it was made aware that she was no longer in a position to work the five-cycle shift because of her disability and her subsequent request that appropriate measures be put in place to facilitate her continued employment. It is clear that the Respondent embarked upon a process of consultation and fully engaged with both the Complainant and relevant medical advisors from June, 2017 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.

I am satisfied that the Respondent endeavoured to put a number of measures in place thereafter to accommodate the Complainant’s disability including allowing her to work the day shift element of her role on a temporary basis for a period of time until August, 2017 and the offer to accommodate the Complainant from August, 2017 in her existing role as an MTM covering weekends (i.e. working a 12 hour day shift on Friday/Saturday/Sunday). The Complainant contends that the offer of day work at weekends was wholly unsuitable to accommodate her disability and that the Respondent refused to accept her GP’s medical advice dated 25 September, 2017 in relation to this matter and also refused to allow her to return to work thereafter. I note that the medical report from the Complainant’s GP dated 25 September, 2017 stated that “[The Complainant] informs me that she has been offered day work at weekends only which is not suitable for her mental health and medical needs”. The Respondent contends that it interpreted this medical report to read that the Complainant deemed the offer of weekend work to be unsuitable rather than Dr. F expressing this opinion, and therefore, that it was lacking in clarity from a medical perspective in relation to the Complainant’s ability to perform her role on the basis of the alternative shift pattern.

On balance, I concur with the Respondent’s position on this matter and I am satisfied that it was not unreasonable in the circumstances to seek further clarification from the Complainant’s GP in relation to her fitness to perform the alternative shift pattern of day work at weekends. I am satisfied that the Complainant engaged extensively with the Complainant, both by way of written correspondence and meetings, over the following six months to try and obtain further clarification in relation to this matter. However, I note that the Complainant did not provide further clarification in relation to this matter until 20 March, 2018 when a further report was submitted from Dr. F which definitively ruled out the option of day work at weekends as a means of accommodating her disability. Notwithstanding the foregoing, I am also satisfied the Respondent sought to explore further options in relation to the provision of reasonable accommodation during this period such as the offer of a position on days in Probe/IPD which the Complainant declined on the basis that it was temporary position.

I am satisfied that the Respondent continued to engage with the Complainant thereafter and she was subsequently referred, by agreement, to the Respondent’s Occupational Health Advisor, Dr. M for further assessment on 13 June, 2018. I find that the report from Dr. M is of fundamental significance in the context of determining what, if any, appropriate measures could be put in place to accommodate the Complainant’s disability. The Complainant was diagnosed with a new medical condition (namely Neurocardiogenic Syncope) by Dr. M and it is clear that this diagnosis when taken in conjunction with the Complainant’s existing disability has further impacted upon the nature and extent of the work and duties that she is capable of performing going forward. Moreover, I note that Dr. M has indicated that there are further restrictions in relation to the nature of the work that the Complainant is capable of performing going forward, including that she cannot work alone; cannot lift anything in excess of 5kg; she is susceptible to sudden fainting and collapsing in the workplace; that she is only capable of working an eight hour day shift starting between 8am/9am; and she should spend in the region of 75% or more of a typical shift in a seated position.

It is clear from the Supreme Court judgement in the Nano Nagle case that the duty to provide reasonable accommodation within the meaning of Section 16 of the Acts cannot be infinite or remove all of the duties which a disabled person is unable to perform as that would almost inevitably become a disproportionate burden. In this regard MacMenamin J. held at paragraph 89 that: “This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”.” Having regard to the foregoing, I am satisfied that it is reasonable to conclude from the content of Dr. M’s report that the Complainant is no longer capable of undertaking many of the key essential duties of the job in respect of which she was employed. In the circumstances, I am satisfied that the removal of all the duties associated to the Complainant’s role which she is no longer able to perform arising from the restrictions and limitations outlined in Dr. M’s report is not tenable in the circumstances and would in fact amount to a disproportionate burden on the Respondent.

The question then turns to the issue as to whether there is any requirement on the Respondent to create a different job or re-designate the Complainant in an entirely different role in order to satisfy its obligations under Section 16 of the Acts. In this regard, I note that it was further held by MacMenamin J. at paragraph 89 in the Nano Nagle judgement 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.”

In considering this matter, I note that the Respondent is a large employer and that there are approx. 1,150 workers based at the facility where the Complainant is currently employed. The Respondent adduced evidence that this facility operates on a 24-hour, seven-day basis and accordingly it is necessary to engage employees on shift patterns that includes working at night and weekends. The Respondent adduced further evidence that there are only 12/13 positions within the facility that operate on a day shift basisand that consideration has been afforded in respect of all possible alternative roles which may be available in other departments outside of the manufacturing area with a view reasonably accommodating the Complainant. I have found the Respondent’s evidence on this matter to be compelling, and on balance, I accept the Respondent’s evidence that it has not been possible to accommodate the Complainant in a suitable alternative role which would satisfy the requirements outlined in Dr. M’s report i.e. an eight-hour shift with 75% of the working time in a seated position with limited lifting and part of a team.

In the circumstances, I find that the nature of the measures that would be required to accommodate the Complainant in order to comply with the recommendations made by Dr. M would involve the creation of an entirely new or different job for her. In applying the principles enunciated by the Supreme Court in Nano Nagle, I am satisfied that the Respondent’s obligation to provide reasonable accommodation in the specific circumstances of the present case does not extend so far as to compel it to create an entirely different job to facilitate the Complainant.

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