Complainant

Respondent

Anonymised Parties

{An Officer}

{A Public Body}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027818-001

17/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00027818-002

17/04/2019

The Complainant is employed with the Respondent since October 1999. He was diagnosed with a form of cancer in 2017.

The Complainant complains that he is being discriminated against on the grounds of his disability, and the Respondent has failed to give him reasonable accommodation for his disability.

The Complainant is an Officer who works with the Community and other organisations in his role. Due to his illness, the Complainant is required to attend numerous medical appointments for treatment and monitoring. He was been refused additional paid medical appointments by his employer (over the three paid annually to all staff) from 2017. The medical appointments policy provides additional paid time off can be granted at the discretion of senior management. He is suffering from fatigue and sleeplessness as a result of his condition. He is unable to work additional annualised hours due to his fatigue, which has resulted in a loss of hours and a consequent financial loss of approximately 8,000 euro per annum.

In September 2018 the Complainant sought to transfer to a different unit which had 2 vacancies. He had previously been redeployed into these units. The transfer would facilitate a seven day roster. He also wanted to discuss alternative options to accommodate his medical appointments on a more consistent basis, and deal with associated conditions of his illness. He worked Monday to Friday 8-5pm. A transfer would allow him to obtain a Sunday premium of 300 euro which would amount to an additional 7,000 euro annually.

The transfer was refused as all employees at his grade work a five day roster. The Complainant was given the option of returning to a lower grade on a 7 day roster but could not return to his higher grade, unless there was a suitable replacement. He was given the option of applying for future competitions for a role with a 7 day roster. He was informed a transfer would require a task review and is required to be in line with the exigencies of the service. The Complainant was told to seek local arrangements for time in lieu and to use his annual leave. The Respondent now says the transfer would be a fundamental change to the terms and conditions of the Complainant’s employment.

The Complainant was offered the option of demoting himself to a lower grade to obtain a seven day roster.

This was not an option for the Complainant as he was already at a financial loss and trying to cope mentally and physically. In November 2018 the Complainant was assessed by a medical officer for the Respondent who reported that the Complainant has long service and has a good sick-leave record. “Allowing him to change to a .. position in …… or …. and do a seven day roster would benefit his overall health and wellbeing and help him cope with what is a very difficult diagnosis”. The Respondent has refused to take on board the recommendations of the Occupational Health Doctor.

The response stated that the Complainant was being accommodated through annual leave requests and medical appointment requests, which the Complainant says is unreasonable. In addition, the difficulty for the Complainant is securing advance approval for medical appointments where he is on a five day roster.

After lodging his complaint, in August 2019 the Respondent suggested he would be facilitated with a six day roster 8am to 8pm. The Respondent also said they would facilitate his medical appointments and he would get the time spent back. The six day roster is not in use for any other employee. It excludes him from Sunday working. The Complainant declined the offer which would differentiate him from other employees and put him at a financial disadvantage. He seeks a transfer to a 7 day roster which is supported by Occupational Health.

The Complainant says he has a disability within S2 of the Employment Equality Acts 1998-2015. Cancer was previously found to be a disability in A Worker v An Employer [ADJ-00008968].

The Complainant relies on Chacon Navas -v- Eurest Colectividades SA [2006] 3 CMLR 40 which held the concept of disability must be understood as referring to a limitation which results from physical, mental or psychological impairments and hinders the participation of the person in his/her professional life. The Complainant says his illness hinders his participation in professional life because he is required to attend numerous medical appointments for treatment and monitoring of his condition.

The Complainant complains that he has not been given reasonable accommodation for his disability pursuant to S16 of the Employment Equality Acts 1998-2015. The Complainant submits that S3(b)(i) of S16 of the Act makes it clear that an employer is obliged to take appropriate measures to enable a person who has a disability to have access to employment on the same basis as a person without a disability. The Labour Court in An Employer v A Worker [2005] ELR 159 noted that the provision of “special treatment or facilities” necessarily involved an element of more favourable treatment.

“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is place in a position where they can have access to, or as the case may be, participate in or advance in employment or undergo training. Thus it maybe necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case”.

In Nano Nagle School v Daly [2019] IESC 63, MacMenamin J summarised S16 of the Act as requiring appropriate measures. The disproportionate burden under S16 (3) (b) is to be evaluated by taking into account “ financial and other costs, the scale and financial resources of a business, and the possibility of obtaining public funding or assistance.” The Court referred to the provisions of S16 (4)(a) and (b) which includes effective and practical measures where needed including adaptation of the employers business to include adaptation of patterns of working time. The Complainant also relies on the decision in Jette Ring- Dansk almennyttigt Boligselskab (C-335/11 & C-337/11) [2013] IRLR 571.

The Complainant is not seeking a reduction in working hours but an adjustment of working patterns, which is the type of accommodation that employers provide to facilitate employees with a disability. The Respondent is a substantial public body and should be able to accommodate the small change sought. The response that the Complainant should demote himself and use annual leave is the disadvantage which hinders the Complainant’s full and effective participation in professional life on an equal basis with other workers.

The six day roster was offered after almost 2 years and the Respondent says this is reasonable. The Complainant accepts that the six day roster does alleviate much of the issues with his patterns of working time. The Complainant submits this is not reasonable accommodation, and the six day roster excludes him from Sunday working hours and impedes his “full and effective participation of persons with disabilities in professional life on an equal basis with other workers” and is not compliant with the Act or Directive 2000/78. There are no regular medical appointments on a Sunday.

The Complainant says there has been no explanation why he cannot be accommodated on a seven day roster. Humphries v Westwood [2004] 15 ELR 296 held an employer would normally be required to make adequate enquiries to establish fully the factual position. There has been no reason given for failure to do so. The Complainant relies on G4S Cash Solutions (UK) ltd v Powell [2016] IRLR 820 when an employee was reassigned to a less well paid role but with his pay preserved following an injury. The UK Employment Appeals Tribunal found it was a reasonable adjustment to continue protecting the pay of the employee and not to allow a reduction by the employer.

Without prejudice to the above, if the six day roster is found to fulfil the requirement for reasonable accommodation the Complainant is entitled to compensation for the failure to provide same.

The Respondent denies the Complainant has been discriminated against in any way by the Respondent.

The Complainant commenced work in 1999, and was promoted to his current position in 2013. His role involves interaction with the community and state bodies. The role is Monday to Friday for all staff at his grade. A HR representative gave evidence that it is possible for the Complainant to carry out some work on a Saturday but not on a Sunday. It is a term of his promotion that he would be assigned on a five day roster. The Respondent fully appreciates the nature of the diagnosis and wishes him well on his treatment and recovery.

The Respondent denies the allegation that they have failed to provide reasonable accommodation. On the contrary, the Respondent has made it clear at all times it is willing to accommodate him. The medical appointments policy for staff provides for 3 paid appointments per year. In exceptional circumstances, additional appointments may be granted. The Complainant was facilitated in taking leave required with annual leave, time in lieu, overtime. The Respondent has made clear to the Complainant he would be facilitated to attend medical appointments necessitated by his disability. The Respondent agreed to paid leave for all of the Complainant’s medical appointments.

The Complainant is no longing opting to work annualised hours/overtime available, which is resulting in his financial loss.

The Respondent refused a transfer by the Complainant to another work stream and says this cannot be facilitated. The Complainant must apply through a competitive appointment process for another work stream and additional qualifications may be required. Transfers to different work streams are very sought after in the workplace.

The Respondent says it is not obliged to agree to the precise accommodation sought, but rather it is obliged to provide reasonable accommodation, and denies any discrimination.

The Respondent says there is no obligation to comply with the recommendation of the Occupational Health Department and the letter from the Occupational Health Doctor supportive of the request of the Complainant states at the end of the report:

“I am aware and I have explained to [the Complainant] that this is ultimately a management decision”.

Following the lodging of this complaint, the Respondent met the Complainant on 16th August 2019 and more than adequately offered to accommodate the Complainant to ensure his participation in employment. The proposals were rejected by the Complainant without explanation of any sort. The Respondent says the accommodation offered is reasonable and regard must be had to the behaviour of the Complainant.

Section 5 of the Framework Directive 2000/78 states in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided.

S16 of the Employment Equality Acts 1998-2015 provides that appropriate measures shall be taken so a person might have access to employment, participate or advance in employment, and undergo training unless the measures would impose a disproportionate burden on the employer. When considering the burden account shall be taken of the financial and other costs involved, the scale of the financial resources of the employer’s business and the possibility of obtaining public funding.

Appropriate measures in relation to a person with a disability are effective and practical measures to adapt the employer’s place of work to the disability concerned, includes the adaptation of premises and equipment, patterns of working time, 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 provide for himself.

The Respondent relies on the Judgement of McMenamin J in Nano Nagle School -v- Daly [2019] IESC 63.The Respondent says the accommodation sought by the Complainant in this case was an adjustment of his working time to permit him to attend his medical appointments. This was facilitated initially by the granting of time off and more recently by a six day liability roster within his current role. This reduces his attendance from ten days in fourteen, to a new roster where he would work seven days in fourteen days. The practical effect of this arrangement is that he has a seven day roster as sought by him. The Respondent says it has not discriminated against the Complainant by not offering the accommodation sought by him and it has provided reasonable accommodation.

The Complainant complains that he has been discriminated against due to his disability cancer in terms of S6 (2) of the Employment Equality Acts 1998-2015, contrary to S8 in respect of his conditions of employment, and the failure to give reasonable accommodation pursuant to S16 of the Acts.

In reaching my decision I have considered carefully the written and verbal submissions made. Due to the sensitive nature of the Complainant’s disability this decision will be anonymised.

The Complainant is a long serving employee of the Respondent who worked a seven day week roster until 2013 when he was promoted. It is a term of his current role that he work a five day week roster from 8am to 5 pm Monday to Friday. All staff at his level work on a five day week roster.

The Complainant was diagnosed with cancer in 2017 which is a disability in the meaning of the Acts as set out in A Worker v An Employer [ADJ-00008968]. This is being actively monitored.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs 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 discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

The “disability ground” is defined in the Act on the basis that one is a person with a disability and   the other a person who either does not have a disability or is a person with a different disability.

S16 of the Acts 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 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. When considering the burden, account shall be taken of the financial and other costs involved, the scale of the financial resources of the employer’s business and the possibility of obtaining public funding.

The Complainant alleges discrimination as a result of the failure of the Respondent to provide reasonable accommodation in granting paid leave for all of his medical appointments (approximately 25 per annum) since 2017. The Respondent’s medical appointments policy provides that all staff are given 3 paid appointments per year. In exceptional circumstances, additional paid appointments can be granted at the discretion of senior management.

The Complainant sought permission to take more than 3 paid medical appointments per annum, this was refused by a number of different members of senior management. A member of senior management who gave evidence at the hearing said it was policy to refuse additional paid medical appointments and his decision was not appealed by the Complainant. The witness had exercised his discretion to grant paid appointments in other cases where there were serious medical issues, for example chemotherapy, physiotherapy, stents. He said the Respondent would facilitate the Complainant locally leaving early. The Complainant was not in a fixed position so could leave early. In August 2019, the Respondent agreed to pay the Complainant’s financial loss incurred for his medical appointments.

The burden of proof in a claim of discrimination is set out in Section 85A(1) of the 1998-2015 Acts which provides:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Occupational Health Doctor of the Respondent in his report of 14th December 2018 advised that the Complainant’s illness is being actively monitored which requires regular appointments. He also says the Complainant has a very difficult medical diagnosis. The Complainant undoubtedly has a serious medical condition and the difficult challenges this entails. The failure of the Respondent to provide extra paid medical appointments to the Complainant raises an inference of discrimination which has not been adequately explained nor discharged. I find the Complainant has been discriminated against on the grounds of his disability by the failure of the Respondent to allow him additional paid medical appointments (which were within their discretion), given his serious illness from 2017.

I am mindful that the Respondent has conceded these payments since August 2019, and has already discharged the Respondent his financial loss. Nonetheless, I award a sum of €7,500 euro compensation to the Complainant for the effects of discrimination.

The Complainant in September 2018, sought a transfer to 2 different roles in other areas to a seven day roster at his equivalent role to allow him to organise his medical appointments more efficiently, and to assist with his symptoms and fatigue. There is a premium of €300 per day payable for working on Sundays.

Another witness from the Respondent gave evidence at the hearing that the roster is devised for each grade to match the tasks. No other employee at the same grade as the Complainant worked a seven day roster. The Croke Park agreement had resulted in structural changes to staffing, and task reviews were an agreed process on redeployment with the staff association. He said the transfers were refused as they were different work streams and it was outside of the agreed process. In order to be appointed to another work stream, the Complainant is required to apply for the roles and take part in a competitive process with the other applicants. There are qualifications required in some streams. There are a significant amount of applications annually for transfers between work streams.

The Complainant was offered a six day roster 8am to 8pm Monday to Saturday in August 2019 which he refused, although he accepts that this addresses many of his concerns.

The personnel officer for the Respondent gave evidence he thought the Complainant was seeking to change his work pattern due to his medical appointments initially and could not see how this would be necessary. He was not aware of the full extent of what was being sought by the Complainant. He said in his role, the Complainant is required to interact with various agencies which is the reason the roster is Monday to Friday. There is an amount of work that can be carried out on a Saturday but not on a Sunday for reasons outlined. There is no rationale to change the role to a seven day roster.

This is disputed by the Complainant who is of the view that work can be done on a Sunday as there is no distraction. He can deal with interagency partners from Monday to Friday.

The Complainant sought reasonable accommodation to transfer to a seven day roster to facilitate consistent scheduling of his medical appointments and to deal with the symptoms of his condition including fatigue. All staff at his grade work Monday to Friday due to nature of the role and specific requirement to interact with other agencies. The Respondent has offered to accommodate the Complainant working on a Saturday and an 8am to 8pm to facilitate his medical appointments. This offer will well facilitate all medical appointments and give flexibility to the Complainant to address his symptoms, which the Complainant accepts. The Complainant can apply for a seven day roster role at any time.

There is a dispute between the parties as to whether the Complainant can work effectively on a seven day roster, given the nature of the role. There are no medical appointments which take place on a Sunday. There will be a significant cost to the employer of €7,000 euro per annum for Sunday premium into the future. The Complainant says he is being disadvantaged as against other staff, but this is not so. No other staff at his grade work a seven day roster. The offer of accommodation made by the employer of a six day roster is reasonable in all the circumstances, given the nature of the Complainant’s role and accommodation sought. Public funds are a scarce resource, and the proposed additional cost of 7,000 euro per annum for a seven day roster for the Complainant sought is not insubstantial. The Act provides that reasonable accommodation should not be a disproportionate burden to an employer. This has been highlighted by the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 and consequently the financial cost of accommodation is an important factor.

I find no breach of S16 of the Acts by the Respondent and the complaint of discrimination from failure to provide reasonable accommodation fails.

CA-0027818-001

I find the Complainant has been discriminated against on the grounds of his disability by the failure of the Respondent to allow him additional paid medical appointments (which were within their discretion), given his serious illness from 2017. I award a sum of €7,500 euro compensation to the Complainant for the effects of discrimination, which excludes financial loss.

CA-0027818-002

I find no breach of S16 of the Acts by the Respondent and the complaint of discrimination from   failure to provide reasonable accommodation fails.

Disability discrimination, failure to reasonably accommodate cancer, 7 day roster, 5 day roster