DEC-E2019-007

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2019-007

PARTIES

Tracy Costello

(Represented by the Citizens Information Service)

Complainant

AND

Allied Irish Bank plc

(Represented by Mairead McKenna, BL)

Respondent

File reference: ET-156112-EE-15

Date of issue:        13th September 2019

1. Introduction:

1.1        On the 8th May 2015, the complainant referred a complaint to the Director of the Equality Tribunal in relation the respondent’s failure to provide reasonable accommodation on the grounds of her disability, fibromyalgia.

1.2        In accordance with the powers under section 75 of the Employment Equality Act, the Director delegated the case to me for investigation, hearing and decision. The parties made submissions in advance of the hearing and attended the hearings on the 17th November 2017 and 28th September 2018. The complainant was represented by Citizens Information Service and the respondent by Mairead McKenna, BL. Three medical witnesses attended on the first day of hearing to address whether the complainant had a disability within the ambit of the Employment Equality Act. The complainant and one respondent witness gave evidence on the second day. The respondent requested that a stenographer attend the days of hearing and, on the basis of the established case law, I approved this request.

1.3        This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

2. Preliminary matter – does the complainant have a disability?

2.1        The complainant outlined that she had a disability within the ambit of the Employment Equality Act. She submitted that the World Health Organisation has recognised fibromyalgia as a disability. She further relied on EU case law, including Chacon Navas v Eurest Colectividades SA C13-05 and Kaltoft v Kommunernes Landsforening C354-13.       

Evidence of the complainant’s GP

2.2        The GP outlined that he saw the complainant frequently from 2010 when she returned to his care. She was also referred to the rheumatology department in a named hospital. 70 or 80% of the complainant’s attendances related to fibromyalgia. The complainant had difficulty getting up in the morning and had aches and pains, low mood, anxiety and an inability to concentrate for long periods. Work issues were not helping her symptoms. The GP said he was reluctant to make a diagnosis and it is a clinical diagnosis, i.e. made following assessments over time. The Senior Registrar’s letter of 30th July 2010 was the first occasion fibromyalgia was mentioned in writing. He commented that when there is a support group for a condition, it suggests that it cannot be cured in one go. This is one of numerous conditions that wax and wane over the years. There is a lot not known about fibromyalgia and it is a condition that evolves and is unpredictable and changeable. The pattern over time is important, over months or even years.

2.3        After her diagnosis, the complainant presented to say that she had ongoing difficulties in waking up. She had general fatigue, mood variation and difficulty coping and concentrating. She had generalized muscle pain, and this was not confined to one muscle. The experts did not think the complainant had narcolepsy and the investigations into disruptive sleep apnea were inconclusive. This, therefore, pointed to fibromyalgia.

2.4        The complainant presented with symptoms of not having slept at night. When she had an active day, she would pay for it by being overtired the following day. They tried out various medications as there is no single “wonder drug”. Some medications cause sedation or abdominal problems, and some are addictive. As this is a long-term condition, there is a concern about using medication over extended periods. One would seek to address the immediate presentation but also look at long-term care. He commented that fibromyalgia is a syndrome and a combination of symptoms, the primary symptom is widespread muscle pain.

2.5        Commenting on the statutory definition of disability contained in a section 2(1)(e), the GP said that the complainant would not be able to do a full week’s work. If one is excessively tired, this affects mood and thought processes to some degree. The definition sounds more like a psychiatric illness. Fibromyalgia is primarily physical with some psychological effects. Ongoing illnesses have greater psychological impacts. Fibromyalgia is primarily a physical disease, even though there is no physical test for the condition.

2.6        The GP outlined that the complainant would have good days but would pay for it afterwards, where she was tired after a hard day’s physical work. His letter to the consultant in 2014 suggested that the complainant had had a relatively good spell, but it was still problematic. He also referred the complainant to a respiratory consultant and to take part in a sleep study. Commenting on the letter of the 28th April 2014, it was not confirmed that the complainant had sleep apnea. The consultant had repeated some blood tests and seemed sure that the complainant continued to have symptoms relating to fibromyalgia. The letter of July 2014 showed that there was a settled diagnosis which the consultant reached over time. The GP commented that it was quite clear that the complainant has fibromyalgia.

2.7        The GP said that it if you break down the word disease, you are not at ease. Pains and tiredness over time are wearing and debilitating. This would affect mood. The word “chronic” does not mean severe but means that it goes on for a long time. He classified the condition as a disability; whether it is under law is a different issue. The GP had other patients who have variances of fibromyalgia. Older people may have adapted their lifestyles over the years. The complainant is affected to a greater degree than others. One had to get through each day. Management of the condition was not the same for one person as for another. Good management can ameliorate symptoms and mitigate the psychological effects. This minimises the problem, but it does not go away.

2.8        The GP said that the real problem with fibromyalgia, like whiplash, comes down to credibility. There is no hard evidence, such as an inflammation or a fracture. It is a diagnosis made over time. When someone presents the same symptoms over time, it is more likely to be true. It is hard to say the same lies all the time. The GP commented that he was not an advocate for the complainant but had seen her over time. He had other patients who he did not believe had the conditions they said they had. The complainant, however, was consistent with her symptoms over years and this was the basis of her diagnosis. This was supported by several consultants.

2.9        The condition seemed to pervade the complainant’s life. He regularly saw the impact on her daily routine and her work. It was the main thing in her life. The aim of management is to elevate the condition, for example exercise programmes and the referral to a physiotherapist. He commented that attitude to pain is also important. One welcomed aches and pains after a good day in the gym, while other pains are not welcome. It is difficult to maintain an attitude for weeks, months or years. The chronicity of problems affected the complainant mentally and her general ability. The GP said that he did not see the complainant now as often as before; this may be related to her no longer needing certificates and a recognition that they had tried pretty much everything and there is not necessarily an awful lot more that can be done. It is a condition that waxes and wanes.

2.10      The GP said that he requested the respondent to allow the complainant work part-time as she would have recovery time. He referred to the letter of the 18th October 2013 letter to the occupational health specialist regarding part-time hours. In his letter of the 7th July 2012, the GP raised the complainant doing part-time hours as a precursor to full-time hours. It seemed that the pressures from the work and the disciplinary process were not helping the complainant’s condition. He said that someone who has a fibromyalgia is not fully able and therefore disabled.

2.11      In cross-examination, it was put to the GP that the respondent did not accuse the complainant of lying; he replied that this had not been communicated to him. He had mentioned whiplash as an example of a grey area. The GP accepted that while fibromyalgia was mentioned in July 2010, there was then no actual diagnosis. He said that while the complainant often attended to get a certificate in relation to her fitness to work, he had no magic cure for her. It was put to the GP that the point of departure between the occupational health specialist and the consultant is the lack of any finding of an objective condition in respect of the complainant; he accepted that this was largely the case. It was put to the GP that the only objective finding related to the sinus and this may be unrelated.

2.12      The GP rejected that he had acted as the complainant’s advocate. The GP accepted that his letter of the 7th July 2012 referred to a phased return to work of 3 days for one month and 4 days thereafter. He also accepted that the October 2013 letter also referred to a phased return over a period. He accepted that his statement that the respondent did not fully support the complainant was largely based on what she told him. He accepted that everyone should be supported to return to work as normal. The GP accepted that the complainant was a smoker, which the respondent stated was contraindicated.

2.13      It was put to the GP that the respondent’s occupational health specialist had seen the complainant about ten times and the complainant was well able to communicate her condition and to carry out normal activities outside of work; he replied that it was his understanding that the condition affected all her life and not just work. He had no sympathy for freeloaders on the taxpayer. Doctors had to give people the benefit of the doubt. His strong impression was that it affected other areas of her life. The GP was asked whether the complainant had been active in other areas of her life, for example gardening and that there was no reference to this in his notes; he replied that they had discussed the areas where she was unable to fulfil normal social engagements because of fatigue, such as babysitting children or the impact of a hard day’s work. It was put to the GP that it would have been appropriate to ask the complainant to walk through her day and this was what the occupational health specialist did, where the complainant mentioned gardening, driving, minding nieces and nephews, going on holiday and doing yoga and other exercise. He replied that the exercise programme was therapeutic, and he was delighted she was able to do this. He noted the occasions when she was unable to do things. It was put to the GP that there was no evidence in the notes that the complainant was unable to do certain tasks, and there is no evidence that the GP had pursued this line of questioning; he accepted that he largely believed the complainant. She was distressed by her inability to work on a regular basis. She was stressed by the disciplinary processes and this suggested that she was genuinely unable to do. Where someone is stressed by the disciplinary process, you would expect them to reduce the stress and get back to work. Her not doing so suggests that her symptoms were genuine.

2.14      It was put to the GP that the complainant incurred 158 days of absence in 2010; 174 days of absence in 2011; 188 days of absence in 2012; 197 days of absence in 2013 and 154 days of absence in 2014. It was put to the GP that the respondent had provided phased returns to work as he suggested. It was put to the GP that the respondent had not acted inconsistently with his advice. It was put to the GP that the respondent had also made provision for the complainant via an income protection scheme and that this amounted to an accommodation

2.15      It was put to the GP that there was no evidence of “disturbed behaviour” on the complainant’s part; he replied that if you are not able to work the full week, or do all the things you do, you are changed. He said that his notes do not refer to the complainant being “disturbed” as this implied a psychiatric condition and there was no psychiatric issue. It was put to the GP that he had not reviewed the call centre or the complainant’s functions; he replied that he was aware of the nature of her work and the complainant had said that her levels of concentration did not allow her to work. It was put to the GP that his notes did not refer to concentration but to fatigue and somnolescence. It was put to the GP that chronic fatigue does not qualify as a disability; he replied that it did if excessive fatigue changed behaviour. He said that fatigue and waking up were the complainant’s main issues. It was put to the GP that the complainant’s symptoms do not meet the definition. It was put to the GP that the income protection insurer had accepted the diagnosis but that it did not amount to a disability; he replied that everyone is entitled to their opinion. It was put to the GP that the complainant’s presentation of fibromyalgia was at the milder end and that the occupational health specialist would have more patients with the condition than he did; he replied that there is a spectrum and the complainant’s presentation was impacting her life considerably. It was put to the GP that fibromyalgia was not included in the Department of Social Protection Long Term Illness scheme; he replied that some exclusions from this scheme were not medically justifiable and undue weight should not be given to any condition excluded.

2.16      In re-direction, the GP said that he took at face value what the complainant had said regarding using many alarm clocks. The occupational health specialist had not been in touch with him during this period. He said that any form of exercise is therapeutic, including gardening, holidays and time spent with family. The complainant had returned with the same symptoms over time and her symptoms were at the severe end.

3. Submissions and evidence of the respondent on the preliminary issue of disability:

3.1        The respondent submitted that the complainant’s presentation of fibromyalgia was not a disability within the ambit of the Employment Equality Act. It advanced medical evidence in support of this submission.

Evidence of the occupational health specialist

3.2        The occupational health specialist outlined that she qualified in medicine in 1992 and was a fellow of the faculty of occupational medicine and a GP. She assessed disability for public sector bodies and insurers. The respondent engaged her to provide occupational health assessments and she saw three or four employees per week until the contract went elsewhere. An occupational nurse was on site every week. In respect of the complainant, she had visited the call centre and met the HR Manager. She had explained the condition to the employer. She had an assessment relationship with the patient and not a therapeutic one. She visited the call centre in late 2009 and 2010 where employees worked in pods. They could have three computers to deal with. There were KPIs as well as clock-in times and break records. It was a difficult job and included making sales calls during a recession. It was psychologically a difficult job but also a sedentary one. They assessed fitness on three measures: safety, capacity and tolerance. The first two were objective and the third, subjective. The complainant demonstrated capacity and the grey area was the third measure.

3.3        The occupational health specialist that she first saw the complainant on the 28th January 2011, when she had been out for time. The matter was escalated to her after the complainant had twice met the nurse. The occupational health specialist was to assess the complainant’s fitness to return to work. She had seen a great many fibromyalgia cases, as they led to a lot of sick leave. The complainant was then attending the rheumatology clinic and participating in a patient-led programme. The occupational health specialist addressed the medical and occupational issues and while she confirmed fibromyalgia, the complainant was getting better and concluded she was fit to return.

3.4        In assessing fibromyalgia, the occupational health specialist said that this is a diagnosis made by exclusion of other serious rheumatological disease. They applied a biological social model, as people are not machines and there may be social or psychological reasons for symptoms. There is a lot not known about fibromyalgia. They accept they do not understand the condition. She commented that the complainant’s GP did everything possible for her. Fibromyalgia can be difficult to find a cure and there is an onus on self-management. There is also medication, diet, smoking and exercise. People describe a “boom and bust” cycle, where they are very fatigued after exercise. You build up your exertion. It is a demoralising condition, so CBT is important to challenge negative thinking. It is about trying to cope and adapt. When the occupational health specialist first met the complainant, she had not been given all the evidence-based treatment. The occupational health specialist recommended a phased return to work. The best thing with fibromyalgia is to work, referring to survey evidence and guidelines regarding the importance of going back to work.

3.5        The occupational health specialist outlined that she carried out several fitness to work assessments in respect of the complainant. Her GP had written on two occasions and she took up his advice. While phased working assists, there came a point on the last occasion when it did not work. The complainant did not improve and there was little point in again recommending a phased return. The issue was the repeated periods of sick leave.

3.6        In respect of whether the complainant’s fibromyalgia was a disability, the occupational health specialist said that in her view, fibromyalgia does not meet the definition of disability in the Employment Equality Acts. There is no system that is broken down. There was no mental illness and the complainant did not have depression. There was no evidence of “disturbed behaviour” (referring to the language used in the definition of disability), and the complainant was a healthy, engaging woman. Sleep disorders had been ruled out and finding it hard to get up in the morning is not a disability or a medical condition. There are lot of people who are on medication who are not disabled.

3.7        In cross-examination, the occupational health specialist said that fibromyalgia is a western disease. It is a recognized syndrome since 1990. She had been a subcontractor for a health insurer with the respondent between at 2008 to 2014, when the insurer was replaced by another occupational health provider. She had noted that the diagnosis of the complainant’s fibromyalgia and she had raised this in conversation. The occupational health specialist commented that rehabilitation can involve reduced duties or reduced hours. They applied phased hours in the complainant’s case. The occupational health specialist suggested part-time hours, but the complainant did not seem interested.

3.8        It was put to the occupational health specialist that the complainant had asked for a longer phased return, she replied that she recommended a six-week period and the complainant was provided with an eight-week period. The occupational health specialist had suggested part-time hours. It was put to the occupational health specialist that the reason the phased returns failed was because they were too short; she replied that typically a phased return occurs over a six-week period. In this case, the respondent had provided three phased returns and there was no indication of complainant’s fatigue while work. The occupational health specialist said that you can get a reactive depression to a chronic condition. Fibromyalgia can be called “brain fog” but she never detected this with the complainant. Depression is not a symptom of fibromyalgia.

3.9        It was put to the occupational health specialist that fibromyalgia has been found to be a disability in other cases; she replied that she did not think it could be a disability. It was put to the occupational health specialist that a disciplinary process could contribute to fibromyalgia; she did not accept this. While stress was very debilitating, if you are fit for work, you have to be fit for a disciplinary process. Stress is not an illness but can lead to sickness. The complainant was fit for work and this included participating in the disciplinary process. She commented that fibromyalgia does not shorten your life and is a difficult issue that requires a lot of self-management. An employee could return to full-time employment, if they fully manage the condition and the employer provided reasonable accommodation. It was put to the occupational health specialist that the complainant had managed her condition and was proactive; she replied that the complainant did return to work, and she assessed her once when she was back at work. The complainant returned successfully on several occasions and had good months. The vast majority of patients get better, while a number do not and end up with chronic fatigue. The occupational health specialist said that the complainant had symptoms of fibromyalgia but no objective signs of the condition. There are no objective signs for fibromyalgia.

Evidence of the Consultant Rheumatologist

3.10      The Consultant Rheumatologist outlined that she reviewed the complainant on one occasion in relation to the application for income protection. The complainant had symptoms of fatigue and did not say she had depression. She said that she slept eight hours per night but had difficulties waking up. There was no objective evidence of weakness. The complainant had pain and was prescribed medication. She also mentioned an ear and sinus infection. The Consultant Rheumatologist advised that the complainant was fit for a phased return to work. In advance of this hearing, she had reviewed all the files. She concluded that the complainant had mild fibromyalgia and her prognosis was good. She should be able to return to work. The medication and its dosage were standard for someone with mild fibromyalgia.

3.11      In respect of definition of disability, the Consultant Rheumatologist said that there was no evidence in respect of clauses a) to c). While she did not carry out a formal mental health assessment, the complainant had not mentioned any mental health issue. She noted that the complainant had previously seen a psychiatrist. The Consultant Rheumatologist said that it would be extremely difficult for fibromyalgia to fall within the definition of disability, but one could never say never in medicine. The Consultant Rheumatologist outlined that she completed her assessment on the 21st June 2011 and reviewed the documentation in the week before the first day of adjudication.

3.12      In cross-examination, the Consultant Rheumatologist said that one meeting could be sufficient to make a diagnosis of fibromyalgia. Where there was grey area, it was possible to get information, for example from blood tests. Any diagnosis by exclusion is never 100%. The current criteria related to generalised pain, tender points and sleep difficulties. The course of the disease can wax and wane. The Consultant Rheumatologist outlined that the complainant presented with the symptoms of fibromyalgia but that this was mild as she had full functionality and a normal gait pattern. She verified that the complainant could do all tasks, who said that she paced herself and did some exercise. They discussed shopping and the Consultant Rheumatologist was not sure if they discussed gardening. In respect of the definition of disability, the Consultant Rheumatologist said that the complainant did not have a physical disability and exhibited no psychiatric or psychological issues. In the US, fibromyalgia was not considered a disability. She had patients with severe pain doing manual work, who had to go part-time or give up. It was put to the Consultant Rheumatologist that work could increase fatigue; she replied that fibromyalgia was difficult to assess, but people can do up and down. At the time she assessed the complainant, she was returning to work on a phased basis.

4. Substantive evidence and submissions of the complainant:

4.1        In the complaint form, the complainant sets out that the respondent did not give her the opportunity to work shorter hours/week to give her a chance to see what she was capable of, as recommended by her GP and consultant. She refers to being put through a disciplinary process over five years and appealing every stage, as well as her dismissal on the 18th November 2014.

4.2        The complainant said that she had worked in a branch role for a different bank and wanted to work in mainstream banking. She started working for the respondent in a training capacity and went to companies to set them up for their business internet banking and to train their staff. The respondent was setting up a Customer Connect centre and she was seconded to this facility. They took calls from branches and her attendance record at this stage was good.

4.3        The complainant outlined that in 2009, she missed one day when a rash flared up and this was diagnosed as a virus. Normal things, such as lifting, became painful. She started getting very tired and could sleep in. She had blood tests and was referred to a gland specialist. The tests were clear and she received the diagnosis of fibromyalgia in 2010. She missed 32.5 days in 2009. A named manager told the complainant in 2010 that she would be going on the cautionary process and this occurred before the diagnosis. The manager said that she should not worry as this was procedure. The occupational health specialist told the complainant that her condition would “burn itself out” after a year or so. She said that the only thing the complainant could do was attend work as much as possible.

4.4        On the 23rd July 2010, the complainant received the verbal warning and told the manager that she now had a diagnosis and named the medication. She said that it could take a year to regulate the medication. This line manager was the fairest person she met and the only one to document everything she said. She thought she had mentioned going on a shorter week, as her GP had said that a phased return was more suitable for returning from an operation. The complainant said that she requested this at many of the meetings with the occupational health specialist and did not feel well treated by the HR Department. In 2010, she applied for flexi-hours and was told that she needed a document from her supervisor. She then went on sick leave again. In 2011, she consented to doctor to doctor contact as her GP had said that he had expected to be contacted by the respondent. The occupational health specialist told the complainant that the respondent did not want people to work part-time and this was the feeling she got. The complainant said that there were no back to work interviews and her team leader would stick a piece of paper in front of her while the complainant was on a call. She signed the sheets because of the disciplinary process.

4.5        The complainant outlined that she had to fight for one disciplinary meeting to be postponed as she was not notified in advance. The worst meeting was the one in June 2011. She had explained that she was catching up on the new products and the manager said the respondent was paying her to work and she should be at work. This was the message in what was a short meeting. At the second meeting in 2011, she was accompanied by a union representative. She had started a course about living well but the respondent refused her application to leave work early. They, however, said that they had facilitated her. The complainant asked for part-time hours at this meeting, but this was not recorded in the note. She then raised this, and this led to the handwritten note on the bottom of the meeting minute.

4.6        In 2012, the complainant requested redundancy as she was fed up and wanted a fresh start. The stress made her illness worse. The respondent said that she was not employed long enough but internal documentation showed that she was not eligible on performance grounds. This was because of the absences even though she had reached her targets. The July 2012 meeting arose because she sought shorter hours. The complainant said that she applied for income protection and a nurse rang her at home. The insurer said that she did not qualify. A colleague with the same condition had qualified so the complainant was surprised. She contacted the insurer and the respondent told her not to contact the insurer. She was never paid income protection.

4.7        The complainant received a final written warning, which she appealed. A HR Manager wrote to the external manager who heard the appeal of the warning, but this letter contained “complete lies”. The first was that the complainant did not ring in, when she had always phoned in. The second was that the complainant had disrespected her employer by not collecting a registered letter. She had explained to the respondent that the post office could not find the letter. The complainant said that everything changed after this letter. The complainant said that she was so anxious going to work. Management treated her dismissively and envelopes were flung to her across a table. She felt that nobody was listening to her, even though she was on medication for a certified condition. She had worked hard for the respondent and liked working there.

4.8        In 2013, the occupational health specialist recommended an ergonomic assessment, but the respondent wanted a staff member to do it. The occupational health nurse later did it and recommended a wrist supported mouse pad, but this was refused. The complainant did not get a response to the 2013 request for shorter week. There was no meeting between the HR Manager and the complainant even though this was recommended in the 2013 occupational health assessment. Her GP had sought a longer period of six months for part-time hours and the six weeks provided was not enough. When the complainant was unable to complete a phased return, she became worried about the disciplinary implications.

4.9        In March 2014, the complainant was referred to a second occupational health specialist after being certified fit to return. She was upset at the March 2014 meeting with this doctor because he told her that the problem was that “she was 41, not married and not happy”. He said that her GP would not decide when she would go back to work. This doctor should have given evidence to this adjudication as he was the last occupational health advisor to see her. She informed the respondent of this doctor’s comments.

4.10      The complainant said she made about 20 requests for reduced working hours. Many would have been verbal, at meetings or in written submissions or via her GP. Her comments were not reflected in the respondent’s documents and she was not asked how she was on her return. Colleagues with physical difficulties were treated better. The complainant said she presumed that once she had informed the respondent of her diagnosis and its effects on her and her energy, this would have helped a lot. She did not enjoy going to work because of the disciplinary process. She described that in the disciplinary hearing, the HR representative was shaking with anger. Her manner was atrocious and said that the complainant had to be let go.

4.11      In her current role, the complainant said that she was now in full time employment in the reservations department of a hotel. She had flexibility to make up time if she was late. Her hours were now 10am to 6pm. This was all that had to be done to accommodate her. She had taken only one sick day.

4.12      In cross-examination, the complainant said that she could not remember if she had made a complaint about the HR representative’s behaviour at the meeting. It was put to the complainant that any such complaint would have been documented; she said that she could have made a complaint. The complainant outlined that she had verbally asked for reduced hours 20 times and had also made this request in her submissions. It was put to the complainant that she made no written request for part-time hours; she replied that she had emailed to request flexi-hours and was told that her supervisor had to sign off on the request. It was put to the complainant that there was no documentary evidence of her requests, save the handwritten note; she replied that the things she said were not documented by the respondent. She outlined that she had challenged the minutes and did so in writing. The complainant said that she had requested shorter hours verbally and in the submission to the party that heard the appeal of the final written warning. It was put to the complainant that the respondent referred her to occupational health following her request and that she was accommodated on four occasions, consistent with the medical reports; she replied that the occupational health doctor had said that the respondent would give a maximum of 6 to 8 weeks. She said that the respondent should have spoken to her about phased hours and tried longer periods of phased return. She said that the respondent did not speak with her and only dealt with her via the disciplinary process. It was put to the complainant that the respondent was entitled to manage attendance via the cautionary process; she replied that she was being treated like someone just phoning in “willy nilly”. She outlined that she had sought shorter working hours, and someone could have spoken to her when the phased return did not work. She asked where the respondent documentation was relating to her going back to work. It was put to the complainant that the respondent had bent over backwards but she was unable to attend work, even when provided with reduced hours.

4.13      In closing submissions, the complainant outlined that she had advised her employer of her disability, who then had a duty of care to her. The respondent was obliged to consider all options. She could have been allocated a shorter working week for an extended period of time, especially as the employer was a large employer. The disciplinary process caused the complainant stress and no help was offered to help her stay in her employment. The complainant asked for shorter hours many times. Her new employer accommodated the complainant and she was able to sustain this employment. She could have continued at the respondent had they provided accommodation. It was clear that the complainant has a disability whose manifestation falls within the Act.

5. Substantive evidence and submissions of the respondent

5.1        The respondent strongly rejected the complaint of discrimination and the failure to provide reasonable accommodation. As outlined above, it submitted that the complainant did not have a disability within the ambit of the Employment Equality Act. It also raised a time point. It relies on section 77(5)(a) of the Act and the requirement for a complaint of discrimination to be made within six months of the date of the alleged event. It submitted that the complainant’s employment terminated on the 14th November 2014 and this was confirmed on appeal on the 26th January 2015. It submits that this complaint relates to the provision of reasonable accommodation and not to the termination of her employment. It submits that while it fully accommodated the complainant, the matters related to the reasonable accommodation pre-date the cognisable period. The respondent submits that the complainant must identify an incident of discrimination within the cognisable period.

5.2        The respondent outlines that the complainant missed a total of 154 days in 2014. The respondent’s absence management process was applied until 2012, when the complainant was subject to the disciplinary process. The respondent outlined that this was fair and appropriate in the circumstances. The submissions chart the complainant’s absences from work, for example 32 full days and two part-days of absence in 2009 and 158 full days of absence in 2010. The complainant indicated in July 2010 that she had the diagnosis of fibromyalgia. Later in 2010, the complainant was deemed fit to return to work, but did not do so. In August 2011, the occupational health doctor concluded there was no medical reason the complainant was not back at work and recommended a phased return. The respondent cites this as an example of an accommodation offered to the complainant. This invitation was set out in the letter of the 11th August 2011, which was sent by registered post but not collected. While the complainant returned to work, there were further absences. While the complainant attended work on three dates in September 2011, there were further absences. This led to the issue of the final written warning on the 7th November 2011.

5.3        There was a further occupational health assessment in April 2012. The complainant was deemed fit to return to work. As the complainant did not return to work, the disciplinary process was invoked in June 2012. The outcome of the disciplinary meeting was that the complainant was given a final opportunity, with the assistance of any accommodation, to demonstrate capability of attending work. The complainant was given a final written warning to remain on file for two years in order for her to reach an acceptable level of attendance.

5.4        The complainant was seen by the occupational health doctor on the 22nd October 2013, at a time of acute relapse of chronic fatigue syndrome / fibromyalgia. The complainant was assessed as being unfit for work and a phased return to work was agreed of four days per week for a four-week period between the 16th December 2013 and 10th January 2014. The complainant was absent for four days in this period. The four-day working week was extended to the 14th February 2014, but there were further absences in this period and the complainant went on extended sick leave on the 24th May 2014. She was then referred to the occupational health, who deemed her unfit to attend work. In July 2014, the doctor recommended that the complainant return on a 3-day week for 6 to 8 weeks before transitioning to full-time employment. The complainant was provided this accommodation as well as a four-day week for a two-week period. The complainant was absent in this period (the 21st August 2014) as well as on three dates in September 2014 (the 9th, 11 and 24th September 2014). On the 25th September 2014, the respondent then referred the matter to disciplinary process and a hearing was held on the 24th October 2014. The complainant was informed of her dismissal by letter of the 11th November 2014. The complainant availed of the right of appeal. This was heard by a third party, who upheld the decision to dismiss.

5.5        In legal submissions, the respondent referred to Bolger v Showerings [1990] ELR 184 as the test for the fairness of a dismissal on grounds of incapacity. It submitted that it was entitled to manage her absences. It provided all the accommodations recommended by reference to the available medical evidence. The complainant had significant absences from work, and she received fair notice of her possible dismissal. The respondent submitted that the complainant was not a disabled person within the ambit of the Employment Equality Act. She did not have “a serious illness” and this did not amount to a disability.

5.6        In supplemental submissions, the respondent submitted that it was required to do what is reasonable and practical. It submitted that the respondent provided reasonable accommodation through phased returns to work. It acted in line with the medical advice given to it. It submitted that the medical evidence in 2012, including from the complainant’s GP, suggests that the complainant was fully fit to work. The respondent outlines that the complainant never applied to HR to go part-time and there was no evidence of any such request made by her to be found in any of the paperwork. It acknowledged that the complainant asked for extended reduced hours in the appeal, but this request could not be seen as a reasonable one in the light of the medical evidence available at that time. The warning appeal decision, issued on the 18th October 2012, when the complainant had returned to work on a phased basis, i.e. having been accommodated.

5.7        The respondent outlines that the letter from the complainant’s GP dated the 4th January 2013 and recommending part-time work on a temporary basis was only furnished to it in July 2013. The complainant had been out sick and was deemed fit to return in May 2013, with no accommodation or phased return recommended. The complainant raised her GP’s letter at the appeal hearing of the 23rd July 2013, when she requested part-time hours. The respondent, however, had more recent medical information confirming her fitness to work. The complainant’s request was, therefore, not medically indicated. The complainant was then absent on full pay from the 29th July to the 15th December 2013.

5.8        The respondent received the occupational health doctor’s report of October 2013, accompanied by the letter from the complainant’s GP. A named staff member met the complainant to discuss the provision of part-time hours and a phased return to work. The complainant returned to work on the 16th December 2013. While she worked the first week, there were sick absences, despite the phased return being extended to the 14th February 2014. The complainant was unable to attend work for her scheduled hours, even with the accommodation provided by the respondent.

5.9        The respondent outlines that the complainant was deemed unfit for a three-month period in April 2014. It does not accept that the complainant applied for flexi-hours at this time. In July 2014, the complainant returned to work on a phased basis for three days over 8 weeks, commencing on the 29th July 2014. She was absent on the 21st August 2014 as well as for a greater number of days in September, October and November 2014. The respondent outlines that it provided all the accommodation medically indicated and provided the complainant with the opportunity to work shorter hours.

5.10      The respondent outlined that it did not know whether the consultant had made the comments attributed to him by the complainant. It acknowledged receiving the complainant’s complaint about these comments. The respondent has procedures to determine applications for shorter hours. There was no evidence of the complainant asking for shorter hours. The only written reference to part time work or shorter hours is the handwritten note and the later referenced in the warning appeal document. She was offered a phased return to work. The respondent’s witness denied the complainant’s evidence that a colleague had behaved like a “lunatic” at a meeting.

5.11      In closing submissions, the respondent outlined that the complainant is not a person with a disability within the ambit of the Act. There must be a bar to meet the definition of disability and the complainant’s diagnosis does not reach this bar. It also referred to the time point. In this case, the respondent more than adequately dealt with the complainant. There were 889 absent days and an employer is entitled to address chronic absenteeism. The complainant was more than reasonably accommodated and referred to occupational health on many occasions. She was fully supported by generous sick pay and was paid in whole or in part for 57% of those sick days. All the available options were implemented. The shorter working week was implemented on four occasions and the complainant could not attend those reduced hours. There was no breach of section 16 of the Employment Equality Act and the respondent was fully flexible. The complainant could not dictate her hours in the call centre and she could not sleep in and be late in this role. She was not legally entitled to do this.

6. Findings and conclusions:

The definition of disability

6.1        The first issue to determine is whether the complainant’s condition falls within the definition of disability set out in the Employment Equality Act. The complainant asserted that her diagnosis of fibromyalgia was a disability. The respondent submitted that the complainant’s presentation of fibromyalgia did not fall within the ambit of disability. The respondent did not make the case that fibromyalgia could not be a disability in every case, but that the complainant’s presentation did not meet the legal test. The medical evidence submitted on behalf of the complainant was that the complainant’s presentation was a disability, while the evidence tendered on behalf of the respondent was that fibromyalgia does not amount to a disability.

6.2        ‘Disability’ is defined in section 2 of the Employment Equality Act as:

“(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”.

6.3        The Employment Equality Act transposes EU Directive 2000/78/EC. While the Directive does not define disability, the European Union has approved the definition of disability set out in the UN Convention on the Rights of Persons with Disabilities. This provides that disability is an evolving concept and arises “from the interaction between persons with impairments and attitudinal and environmental barriers” that hinders their full and effective participation in society on an equal basis with others. Article 1 of the Convention sets out that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments. The Court of Justice of the European Union has held that a disability must be long-term (see the HK Danmark cases (C-335 and 337/11)

6.4        In A Government Department v A Worker (EDA094), the Labour Court set out how to determine whether a claimant has a disability within the ambit of the Act. In a case where the employee was diagnosed as having a depressive illness, the Court held:

“the … issue which the Court must decide is whether the condition from which the Complainant suffered is a disability within the statutory meaning ascribed to that term. That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability contained at s.2 of the Act and the application of that definition to the facts as admitted or as found by the Court. …

It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:- “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”

6.5        There are examples where fibromyalgia has been held to be a disability. The Equality Tribunal accepted that fibromyalgia is a disability in previous cases (see Carroll v H.J. Heinz Frozen & Chilled Foods Ltd (DEC-E2011-114) and An Environmental Manager v A Metals Recycling Company (DEC-E2017-068)). The European Parliament issued a Declaration (2010/C46 E/07) calling on the EU to develop a Strategy to recognise this condition as a disease as well as improving access to diagnosis and treatment. Fibromyalgia was held in the courts to be a disability in the context of personal injury proceedings. In O’Reilly v Irish Life Assurance plc [2005] IEHC 449, the High Court concluded that the nature and extent of the plaintiff’s fibromyalgia was a complete or partial disability for the purposes of the salary protection insurance. In Zhang v Farrell [2018] IEHC 441, an award of damages was made to the plaintiff for physical (including fibromyalgia) and psychiatric injuries arising from a collision.

6.6        The medical evidence proffered on behalf of the respondent was that fibromyalgia is not a disability, while the respondent’s own position was nuanced. It submitted that the complainant’s fibromyalgia did not amount to a disability. As opened in this case, the CJEU in Chacon Navas distinguished between sickness and disability, determining that sickness of itself was not protected by the discriminatory ground. In Chacon Navas, the employee was temporarily unable to work while waiting for an operation, although the exact nature of her condition is not specified. The claimants in the HK Danmark cases had osteoarthritis and the sequelae from a car accident (including fatigue and muscle pain). The CJEU held that both claimants in HK Danmark fell within the ambit of the “disability”. It held that the concept of disability includes “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 effect participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”

6.7        Having considered the evidence and submissions of the parties, I find that the complainant’s fibromyalgia is a disability within the ambit of the Employment Equality Act. For clarity, I find that it falls within subsection (e), i.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”. In reaching this finding, I note the diagnosis of fibromyalgia made by a consultant in 2010. I note the evidence of the complainant’s GP. He set out the limitations placed on the complainant by her condition, for example in getting up in the morning after a strenuous day. I note that this condition is long-term and had a significant impact on the complainant, as opposed to being insignificant or having a de minimis effect. Adopting the approach taken by the Labour Court in A Government Department v A Worker as well as the definition of ‘disability’ in the UN Convention and HK Danmark, I find that the ‘manifestations’ described in the complainant’s evidence and reflected in the evidence of her GP and the occupational health specialist amount to a ‘disability’. The manifestations include excessive fatigue, difficulty coping and concentrating, mood variation and generalised muscle pain. They hindered the complainant’s “full and effective participation” in the workplace on an equal basis with others.

Obligation to provide reasonable accommodation – working time

6.8        Section 16(3) of the Employment Equality Act provides that “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.” The section sets out that such ‘appropriate measures’ include ‘patterns of working time.’ As noted above, in HK Danmark, the CJEU decided “Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.”

6.9        In Humphries v Westwood [2004] ELR 296, the Labour Court held “ThisSection [section 16], on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground 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. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration.

This would involve looking at the medical evidence available to the employer either from the employee's doctors 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 cost 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.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

6.10      In the Circuit Court appeal in Humphries, Dunne J. held “During the course of her employment certain situations did arise whereby the employer did make serious attempts to facilitate the plaintiff’s illness [anorexia]. To a large extent the employer did bend over backwards to assist and facilitate the plaintiff and this is where I diverge from the decision of the Labour Court. I understand that there were legitimate concerns … regarding the plaintiff’s health. I am in no doubt but that the employer is entitled to have legitimate concerns. I am in no doubt that the employer in fact did have these concerns regarding the plaintiff. However, the way to deal with these concerns was to take medical advice in order to allay those concerns. An employer should take advice from the plaintiff’s own doctor or from an independent doctor. The employer had the legal obligation under the Employment Equality Act to deal with her in that way.”

6.11      The complainant asserts that she repeatedly asked for shorter working hours and that this was not accommodated by the respondent. She asserts that the reduced working time introduced as part of phased returns to work were not sufficient to make this sustainable. The respondent asserts that it did all that was reasonable in accommodating the complainant and that it acted in accordance with the occupational health and medical advice. It submitted that it provided four periods of phased returns and absences occurred during these periods. It pointed to the accommodation of paying the complainant in part or in full for 57% of the 889 days of absence on illness grounds.

6.12      A central conflict in this case is whether the complainant requested shorter working hours to accommodate her condition of fibromyalgia. She says that she did and points to the handwritten note at the end of the minute of the meeting of the 17th June 2011. This note confirms that the respondent was invoking Stage 3 of the cautionary process following her absences from work. The handwriting refers to possibility of changing the complainant’s working pattern from “5 days to 3 days”. It is certainly the case that in October 2013, the occupational health specialist referred to changing the complainant’s working hours. In the letter of the 24th October 2013, the occupational health specialist sets out the complainant’s request to work reduced hours on a long-term basis. The occupational health specialist finds that the complainant was then not fit to return to work and recommends that HR meet the complainant to discuss ‘her options for working part time hours even on a temporary basis’. This correspondence encloses a letter from the complainant’s GP where he is ‘loath’ for the complainant to commit to full time work and ‘very pleased’ if she could be accommodated with part-time work over a period.

6.13      A striking feature in this case is the voluminous documentation presented in several lever arch files regarding the complainant’s absences from work. This contrasts with the absence of any documentary record of how and when the issue of the complainant working shorter working hours was considered by the respondent. There is, for example, no documentary record of the respondent’s consideration of the October 2013 request for reduced hours. The “case summary” of the 23rd September 2014 refers to the October 2013 request and states that following a discussion between the complainant and her line manager in November 2013, “an initial 4-day week phased return to work over a four-week period was agreed”. In her evidence, the complainant said that she did not meet a HR Manager at this time to discuss moving to a shorter working week over an extended period of time. There is no evidence that the line manager who dealt with the November / December 2013 return had authority to agree anything other than a phased return, i.e. to change the complainant’s return to work to meaning a return to a part-time role. There is no evidence that the respondent ever considered the shorter working week other than in short phased returns. There is no evidence that the occupational health specialists were asked to give their opinion regarding changing the complainant’s role to a part-time one. Having considered the evidence as a whole, I find as fact that the complainant repeatedly asked to move to part-time hours, as set out in her evidence. I accept that the handwritten note followed discussion at the Stage 3 meeting in 2011. I accept that the complainant raised this issue in other meetings, albeit the only further written record until 2014 was the occupational health request in October 2013.

6.14      For there to be a finding of discrimination / failure to provide reasonable accommodation, there must be a contravention in the cognisable period. Having reviewed the documentation, the following items arising at the end of the complainant’s employment are relevant in assessing the evidence. The issue of the complainant moving to part-time hours was raised at the disciplinary hearing of the 24th October 2014. She says that she could work hours if offered them. She said that somebody should have offered her such hours by now and it did not make sense not to offer her reduced hours. She specifically refers to the October 2013 request from occupational health. The complainant outlines that she successfully completed three three-day weeks. The respondent refers to absences arising during the phased return which followed. It states that the complainant has not reached a sustainable level of attendance even with the accommodations recommended by occupational health. The respondent submitted that the absences in the phased return period showed that the complainant could not sustain even reduced hours.

6.15      In the letter of dismissal of the 11th November 2014, the respondent referred to the complainant’s high absence rate, estimated at 77%. It refers to another long absence following the phased return in 2014. It concludes that the outcome would not be different if a reduced hours arrangement was attempted again. It concludes that the complainant should be dismissed on grounds of not being capable of reaching and sustaining an acceptable level of attendance at work. In her letter of appeal of the 17th November 2014, the complainant refers to her requests for part-time or flexi-hours being ignored. She refers to asking for reduced hours to be allocated for a longer period than the phased returns. In its submission to the appeal, the respondent refers to an agreement in late 2013 that the complainant would return on a four-day week for four weeks, starting the 9th December 2013 (and delayed to the 16th December). There were, however, absences of two days in the weeks of the 30th December and the 6th January as well as in the week of the 24th January 2014. The complainant was then absent until the 14th March 2014. In respect of the phased return starting the 30th July 2014, the respondent outlines that the complainant attended the required three-days per week for the first three weeks and there was one day’s absence in weeks 4 and 7. On the return to full-time work in August 2014, there were 23 days of absence between then and the 13th November 2014. This charts 11 periods of absence consisting of 1 or 2 days of absences as well as two 5-day periods. I note, however, that in the phased returns in December 2013 and July 2014, the complainant initially achieved attendance during the three-day week phased returns, although absences arose as her working week was extended.

6.16      At the appeal meeting, the complainant asserts that she is entitled to reasonable accommodation for her disability. She refers to applying for flexi-hours in January 2013, to which there was no reply. The complainant sets out that she should not have been put through the cautionary or disciplinary processes as this stemmed from her disability. She states that she could “find out” her capabilities had she been given shorter hours for longer. The respondent later submitted that the complainant was provided with four phased returns (July 2011, July 2012, December 2013 and July 2014) and failed to sustain attendance. The respondent outlines that it did its best, based on medical advice. The appeal was determined by an independent third party, who upheld the dismissal. It held that the respondent had accommodated the complainant’s disability and had not discriminated against her.

6.17      Having considered the evidence and submissions of the parties, I find that the respondent discriminated against the complainant and did not provide appropriate measures to accommodate the complainant’s disability. Above I have found as fact that the complainant asked for shorter working hours following prolonged and repeated absences, which stemmed from her disability of fibromyalgia. The respondent was meticulous in applying the absence management and disciplinary processes, including times when it facilitated the complainant beyond the scope of the policy. I appreciate that the respondent asked the occupational health specialist to assess the complainant on several occasions. I acknowledge that phased returns to work were provided, but what was not provided was consideration of changing the complainant’s working pattern to reduced hours or part-time work over a prolonged period. Consideration was not given to changing the “work” in “phased return to work” to a role with reduced hours; instead, it was always the return to full-time hours. I note that there was no formal process to assess what accommodations could be provided to the complainant (and hence the absence of documentary records). Instead, the referrals to occupational health took place in the context of absence management and the disciplinary processes. I note that the periods of phased return were matters of weeks and not a more appropriate longer period. The referrals to occupational health were in the context of the complainant returning to the full-time role and did not ask if a longer-term adjustment of reduced hours should be made. Crucial to this finding is that the request for an extended period of reduced hours set out in two doctors’ letters in October 2013 does not seem to have prompted any review or action by the respondent. As noted above, there is no evidence that the line manager who spoke with the complainant in November 2013 had authority to agree reduced hours over a sustained period. I note that the complainant achieved attendance when her working week was three days, for example in the phased returns in December 2013 and July 2014. While absences later arose, this occurred when her working week was extended. Undoubtedly, the complainant asked for reduced hours on an extended basis and this possible adjustment was not considered. This is the obligation which section 16(3) imposes on an employer, as reflected in HK Danmark. The respondent discriminated against the complainant when it did not adequately consider such an adjustment.

6.18      Applying the approach set out in HK Danmark, it next falls to address whether making the adjustment of reducing the complainant’s hours amounted to a disproportionate burden on the respondent. Taking account of the size of the respondent, a large retail bank, and the nature of the complainant’s role, an advisor based in a call centre, where staff worked on hot desks, I find that it was not disproportionate to amend the complainant’s working time and to reduce her hours.

The time issue

6.19      As set out, the relevant cognisable period is the 9th November 2014 to the 8th May 2015. The complaint was referred to the Workplace Relations Commission on the 8th May 2015. By letter of the 11th November 2014, the respondent dismissed the complainant. On the 14th November 2014, the complainant was informed that it would not be appropriate for her to attend work during the appeal process. She conducted the appeal, which concluded on the 26th January 2015. By letter of the 2nd February 2015, the respondent outlined that the complainant would be paid six weeks of notice as well as accrued annual leave etc. It is clear that the complainant’s dismissal falls within the cognisable period. This was not a complaint of discriminatory dismissal (there was a separate Unfair Dismissal claim) but a claim of discrimination arising from the failure to provide reasonable accommodation. I have found above that the respondent discriminated against the complainant in not providing reasonable accommodation in respect of working time.

6.20      The complainant had absences from 2009 to her dismissal in 2015. She no longer attended work from the 14th November 2014. As submitted by the respondent, there must be a discriminatory act within the limitation period. Section 77 of the Employment Equality Act sets out the limitation period within which claims must be made. Section 77(5)(a) of the Acts provides: “(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.” Section 77(6A) provides: “For the purposes of this section — (a) discrimination or victimisation occurs (i) if the act constituting it extends over a period, at the end of the period.”

6.21      In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5) and (6A): “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.” In Hurley, the Labour Court also commented on section 77(5) as follows: “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

6.22      I have found as fact that the complainant repeatedly requested reduced working hours, for example in the cautionary and disciplinary processes. She did so again during the cognisable period. I find that the respondent’s treatment of these requests for part-time hours represents ongoing discrimination. For completeness, I find that this treatment fell within the ambit of a ‘discriminatory practice’ encapsulated by section 77(6A), although a finding could also be made that it fell within the ‘continuum’ covered in section 77(5).

Redress

6.23      I have found that there was a contravention of the Employment Equality Act. This arises from the failure to adequately consider the complainant’s requests for reduced hours, an appropriate measure within section 16. In assessing redress, I have regard to the following factors. This case did not relate to the complainant’s dismissal, nor to other possible forms of accommodation that could have been considered (for example, amending the cautionary absence policy along the lines of another fibromyalgia case Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265). I also have regard to the accommodations put in place by the respondent, for example the payment of sick pay, the referrals to occupational health and the phased returns. Ultimately, however, the complainant was discriminated against following the failure of the respondent to adequately consider providing the complainant with reduced hours for an extended period. In determining redress that is “effective, dissuasive and proportionate”, I award redress of €20,000.

7. Decision:

7.1        I decide that the complainant was discriminated against on the disability ground by the failure to provide her with reasonable accommodation. In accordance with my powers under section 82 of the Employment Equality Acts, I hereby order that the respondent pay the complainant €20,000 by way of compensation for the breach of the Act. The award is redress for the infringement of the complainant’s statutory rights and therefore not subject to the PAYE/PRSI/USC code.

___________________________

Kevin Baneham

Adjudication Officer / Equality Officer

        13th September 2019

Key words

Employment Equality Act / disability ground

Fibromyalgia / whether a disability?

Appropriate measure / working time

Cognisable period / ongoing discrimination