Complainant

Respondent

Anonymised Parties

Production Operative

Bakery

Representatives

Ms. Cliadhna M. Sheridan, Solicitor

Ms. Niamh Daly, IBEC

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-00030996-001

17/09/2019

The Complainant commenced employment with the Respondent on 20th October 2008. Initially his role was that of a “Shunter”, which involved driving vehicles between two of the Respondent’s sites. Throughout the tenure of his employment the Complainant fulfilled various roles, with the most recent being a production operative. On the date of the hearing, the Complainant was still in employment with the Respondent.

On 26th September 2019 the Complaint lodged a complaint with the Commission, alleging a breach of the Employment Equality Acts only. In particular, the Complainant alleged that the Respondent had failed to provide reasonably accommodation to allow him to return to work with a disability.

Following an adjournment of the hearing, the matter was heard and finalised on 12th March 2020. Both parties submitted extensive written submissions prior to the hearing and made further oral submissions at the hearing itself. Additionally, both parties availed of the opportunity to question the evidence and submissions as presented. In circumstances whereby the Complainant made an application for the names of the parties to be anonymised, and no objection was received from the Respondent in respect of the same, I have decided to exercise my authority to do so in the published decision.

At the outset of the hearing, the representative for the Respondent raised two preliminary objections to my assumption of jurisdiction hear the complaint as referred. These were considered prior to the substantive hearing.

At the outset of the hearing, the representative for the Respondent submitted that the Complaint was statute barred for the purposes of the Employment Equality Acts.

The Complainant’s complaint form states that the most recent date of discrimination was 28th January 2019. In circumstances whereby the complaint form was not received by the Commission until 25th September 2019, the complaint was referred in excess of six months from the final date of discrimination and is consequently statute-barred.  

By response, the Complainant’s representative submitted that the complaint was in fact lodged within the appropriate time-frame. She submitted that the complaint was submitted to the Commission on 17th April 2019 (within the six-month period from the last date of discrimination) but was not processed until September of that year. Notwithstanding the same, she submitted that the discrimination alleged was ongoing and consequently the most recent date of the discrimination fell within six months of 25th September 2019. In the alternative and without prejudice to the foregoing, the Complainant further submitted that they could demonstrate “reasonable cause” to extend the consignable period for the referral of the claim to 12 months from the final date of discrimination if required.

Section 77 (5A) of the Acts provides that,

“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 that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“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…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.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

In the matter of Occupantal Limited -v- Joseph Hayes EDA 184, the Labour Court examined the specific application of the Section 6(A) to a complaint involving a failure to provide reasonable accommodation. Here the Court stated that,

“…the claimed failure of the Respondent to accommodate the Complainant in respect to his disability can constitute a practice within the meaning ascribed to that notion by section 77(6A) of the Act in Ann Hurley v Co Cork VEC. Consequently, the cognisable period for this aspect of the within complaint extends up to the date on which the Complainant’s employment came to an end.”

In light of the wording of Section 6(A), and having regard to the precedents quoted above, the Respondent’s alleged failure to provide reasonable accommodation constitutes an ongoing “practice” that continued to the date of the lodgement of the complaint form. As such I find that the final date of discrimination fell within six months of the date of lodgement with the Commission and the consequently the complaint is not statute barred.    

In addition to the foregoing point, the Respondent further submitted that the Complainant failed to establish that he was disabled within the meaning of the Employment Equality Act.

The Complainant submitted that he was in receipt of numerous doctor’s reports confirming his disability and that the Respondent had been aware of the same at all relevant times. In particular, the Complainant opened doctor’s reports dated 5th May 2018 & 12th February 2019 that confirm a diagnosis him with sleep apnoea and hypertension. By response, the Respondent submitted that these conditions do not meet the definition of disability for the purposes of the Employment Equality Acts.

Section 2 of the Employment Equality Acts define disability in the following terms

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”

In the matter of A Government Department v A Worker EDA 094, the Labour Court held that:

“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

In the matter of A Government Employee -v- A Government Department DEC-E2010-055, the Equality Tribunal found that hypertension, even when effectively managed and controlled, constitutes a “malfunction” of a person’s bodywithin the third definition of disability above. In addition, in the matter of Jaclann Holdings Limited -v- David Clarke EDA1914, the Labour Court accepted that sleep apnoea, along with an ongoing heart condition, met the definition of disability for the purposes of the Employment Equality Acts.

Regarding the burden of the proof in relation to the purported disability, the Complainant submitted two occupational health reports diagnosing these conditions and discussing the impact of the same on his ability to continue in the role. The content of these reports were not contested by the Respondent, and indeed were relied upon in their subsequent defence of the substantive claim.

In such circumstances I find that the Complainant has discharged the burden of proof in establishing a disability for the purposes of the Employment Equality Acts.    

At the commencement of the Complainant’s employment, he was engaged as a driver prior to be moved to the packing department. The hot conditions in the packing department exacerbated two of the Complainant’s medical conditions. Approximately two months after transferring to this department the Complainant commenced a period of sick leave on the advice of his medical practitioner.

On the 2nd May 2018, the Complainant was assessed by an occupational health specialist appointed by the Respondent. On occupational health report of the 15th May 2018 advised that the Complainant would not be medically fit to work in the production, packaging or dispatch departments. This report also concluded that he would not be a suitable person for night duties for the foreseeable future. The report did indicate that the Complainant would be fit to return to work as a vehicle washer or shunt driver, should such positions be available. Notwithstanding the same, the Complainant’s own GP certified the Complainant as unfit for any duties until 17th September 2018.

On 21st September 2018, the Complainant met with a member of the Respondent’s HR department to discuss his potential return to work. During this meeting the Complainant was offered the position of shunt driver, however this was declined as the Complainant indicated that it was overly stressful. When asked what positions he envisioned for himself on his return, the Complainant stated that he suggested washing trailers or being assigned short driving trips only.

On 7th December, the Complainant’s representative corresponded with the Respondent requesting a meeting to discuss his ongoing employment. A meeting in relation to the same was convened for 20th December 2018.

In the course of this meeting, the Complaint advised that his medicals conditions remained unchanged from the previous meeting. The Complainant advised that he was unable to drive for long distances but would be willing to accept a driving role on the condition that he did not drive for any longer than 45 minutes with the next 15 spent unloading the vehicle. He further advised that he was still unable to complete any shunting driving. Again, the Complaint advised that he would be willing to accept a role washing trailers on a full-time basis. The Complainant also advised that he would be willing to accept a role driving a fork-lift on a full-time basis.

By correspondence dated 28th January 2019 the Respondent they could not facilitate a full-time position washing trailers as this was completed by the drivers as part of their normal duties. They further advised that they could not create a driving role for short distances was this was being completed as a part of other employee’s duties and did not constitute a full-time role. This correspondence also stated that a further occupational health assessment would be arranged to facilitate his return to work. This assessment was duly arranged for 12th February 2018.

By report dated 12th February 2019, the assessor again stated that the Complainant could not work in the production or dispatch department and that he was not a suitable candidate for night work. This report did indicate that the Complainant could return to the roles of shunt driver, vehicle washer or dispatch supervisor.

On 13th February 2019 the Complainant’s solicitor indicated that he was willing to return to work as a shunter or in the checking department.  

In late 2019, a position as a shunt driver was offered to the Complainant. However, on 18th December 2019, the Complainant’s own GP indicated that he would by unfit for the role of shunt driver as this would increase his blood pressure. On foot of the same, the Complainant attended a further occupational health assessment on 14th January 2020. This stated that given a change in the Complainant’s medical circumstances he was no longer fit to complete the role of Shunt driver and that he could only work safely as a vehicle washer or a dispatch checker.  

It is the position of the Complainant that the Respondent failed to reasonably accommodate his return to work. Throughout his employment he demonstrated a willingness to adapt to various roles. At all time he was willing to return to a role within the parameters set out by the occupational health specialist, however the Respondent made no meaningful effort to accommodate this return and consequently he was discriminated against   on the grounds of disability.

The Complainant commenced employment with the Respondent on 20th October 2008 in the role of Shunter within the transport department. In June 2016, the Complainant was moved from the Shunter role to that of cleaning/washing trailers and continued in this role until 17th February 2018. Following a re-organisation of the Respondent’s operations, the Complainant was moved to the packaging operator. This was discussed with, and agreed by, the Complainant in advance of the change of duties.

On 13th April 2018 the Complainant commenced a period of sick leave, citing “hypertension, stress”. On 2nd May 2018, the Respondent referred the Complainant for an occupational health assessment. The report stated that the Complainant suffered from hypertension and sleep apnoea and stated that the Complainant was not medically fit to work in the production, packaging or dispatch departments.

The Respondent arranged an informal welfare meeting for 21st September 2018. In the course of this meeting, the Complainant advised that he could not work as a vehicle shunter as the work was too stressful. He also advised that he was unable to complete long drives or operator duties. While the Complainant did indicate that he would be wiling to complete short runs or return to his role washing trailers only.

On 8th November 2018, the Respondent corresponded with the Complainant advising that they did not have any positions that could incorporate the Complainant’s suggestions, but that they would advised if any became available.

The Complainant was invited to the further welfare meeting on 20th December 2018. In the course of this meeting, the Complainant advised that his medical condition had not changed and he would be unwilling to work as an operator, an artic driver or a shunter driver. The Complainant did advise that he could work driving short distances, washing vehicles or driving a forklift. By correspondence dated 28th January 2019, the Respondent again advised that no such roles were available and indicated that they would refer him for further occupational health assessment.

The Complainant attended for assessment and a report was duly issued on 12th February 2019. This report again stated that the Complainant was not medically fit to work in the production, packaging or dispatch departments and advised that this state of affairs was unlikely to change. The report also stated that the Complainant would be medically fit to work as a shunt driver or a checker if such work was available.

After a period of time, a position as a shunt driver became available and was offered to the Complaint. However, the Complainant’s GP issued correspondence indicating that such activities would cause difficulties with the Complainant’s hypertension. On foot of the same, the Complainant was referred for another assessment on 20th January 2020. This assessment concluded that the Complainant could not work in the production, packaging or dispatch departments. The report also concluded that the Complainant would no longer be medically fit to work as a shunter, and stated that the only roles he would be medically fit to complete were that of vehicle washer or dispatch checker. Following receipt of this report, a role as dispatch checker came available. This was offered to the Complainant and was duly rejected by him.

In answer to a question, a witness for the Respondent stated the Complainant’s request to move back to his previous role was given serious consideration. However, following a significant internal review, this role had been subsumed into the daily duties of all drivers and did not exist as a stand-alone position at the relevant time. Furthermore, the witness stated that a change to the Respondent’s operations meant that washing vehicles would not constitute a full-time role in any event.

In summary, the Respondent submitted that the recent Supreme Court determination of Nano Nagle -v- Daly [2019] IESC 63 confirms the position that the duty to reasonably accommodate an employee does not require an employer to create a job for an employee with a disability. They submitted that it is not in dispute that the Complainant was unfit for the role for which he was employed and at no stage were any measures proposed which would amount to reasonable accommodation under the Act.  As such the Respondent denied that the Complaint was discriminated against at any stage of his employment.

Section 16(3)(b) of the Employment Equality Act provides that,

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

Section 16(3)(b) provides that,

“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.”

In the recent case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows:

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

The Court went on to state that,

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that Complainant, and whether the Complainant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a Complainant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.”

In setting out this test, the Court accepted that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

In the present case, it is clear that the Complainant was medically incapable of performing the functions of his role. This conclusion was reached following the receipt of three separate medical reports, two meetings with the Complainant and was accepted by the Complainant at all times. Rather, the position adopted by the Complainant was that the Respondent’s failure to assign him to an alternative role constituted a failure to provide reasonable accommodation for the purposes of the Employment Equality Acts.

Notwithstanding the position adopted by the Supreme Court cited above, it is also clear that the Respondent did make reasonable attempts to secure an alternative role for the Complainant. During the consultation with the Complainant, he was offered two of the roles he was deemed fit to perform. In both instances the Complainant declined these offers, instead insisting that he return to his previous role, which for all intents and purposes no longer existed.

In such circumstances, and in light of the case-law cited above, I find that the Complainant was not discriminated against by a failure to reasonably accommodate his disability and consequently his complaint fails.

I find that the Complainant was not discriminated against by a failure to reasonably accommodate his disability and consequently his complaint fails.

Reasonable Accommodation, Alternative Role, Disproportionate Burden