Complainant

Respondent

Anonymised Parties

Store Assistant

Retail store

Representatives

Dublin City Centre Citizens Information Service

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-00022543-001

10/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022543-002

10/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022543-004

10/10/2018

CA-00022543-001

The complainant has worked as a store assistant with the respondent since 2004. He works 37.5 hours a week and earns an hourly rate of €12.50.

His complaint is that he was dismissed on 14/4/2018 on the grounds of his disability.

CA-00022543-002

The complainant states he is owed €2808 in holiday pay since 15/4/2018. In addition, he is owed a further €470 in respect of unpaid wages owed to him since January 2017.

CA-00022543-004.

He was not afforded his accrued annual leave entitlements in respect of periods spent on certified sick leave.

He submitted the above three complaints to the WRC on 10/10/2018.

CA-00022543-001

The complainant states that he was discriminated on the grounds of disability by not being given reasonable accommodation. He was discriminatorily dismissed on 14/4/2018.

Preliminary point.

In relation to the respondent’s argument that the claim is time barred, the complainant’s representative advised that the final acts of discrimination occurred on 14 April 2018 which was the notification of his dismissal and the appeal on the 7 June 2018, against the dismissal, both of which are within time and admissible.

He was diagnosed with a heart disease in September 2014. He went on sick leave from 14 September 2014 - 12 November 2016 with a diagnosis of angina. He returned to work on 11 November for a week on lighter duties – working mainly on the till for one week. In the second week after his return, the complainant was returned to heavier duties whereupon he experienced chest pain, sought medical assistance and was diagnosed with work related stress on 16 November 2016 and advised not to do any heavy duties. He on certified sick leave until the termination of his employment. In November 2016 he stated that he could work 19-20 hours and could lift weights below 20 kg.

The complainant states that while the company doctor declared him fit to resume work with no restrictions in January 2017, that assessment failed to consider his more recent illnesses – diabetes and resultant complications such as glaucoma, stress, anxiety and hypertension. It was an incomplete assessment. The respondent had discussed a return to work on shorter hours and with lighter duties at that time, but this was later refused in January 2017. He tried to return to work in January 2017, but his employer would not accommodate his disabilities by allowing him to work part-time or giving him lighter duties.

The complainant asked many times if they could consider shorter shifts or a different position for him within the company, but they would not even try.

In March 2018 the complainant met his manager to discuss his absence. He explained again that he could not return to work doing heavy lifting but that he would be able to do lighter duties. Again, his request was ignored.

The complainant received his dismissal letter on 14 April 2018.

There was no discussion of alternative roles.

The respondent made no efforts to accommodate his return to work. Ms D, the store manager, told him that lighter duties were not available.

After 14 years working at the company, he was let go with outstanding wages still owed and none of his annual leave paid to him.

Alternative duties

The complainant did not need training to perform lighter duties. His job title was that of Store Assistant which was not a fixed role. He could have worked in a part-time capacity at the till and in a caretaker role on a part time basis. Complainant states that he could have done the till and could have done the transfer of cash to the bank. He could have done some office work

Discrimination

The respondent is a large multi-national with many different roles within the organisation. Despite the complainant’s requests to be considered for other roles or lighter duties the respondent at no time considered these requests.

The complainant referred to the decision of Humphries -v- Westwood Fitness Club ELR 296 which set out the obligations on employers in relation to reasonable accommodation.

The employer is obliged to: -

·         Examine the factual position and seek clear medical guidance regarding the employee's

               capability including the degree of impairment arising from the disability and its likely

             duration;

·         Consider what, reasonable accommodation or appropriate measures (including any special

             treatment or facilities) can be made available by which the employee may become fully

             competent to perform his or her role;

·         Consult with the employee along the way to ensure that the employee has a say in any

             decisions which could adversely impact their terms and conditions of employment or which

             could lead to the termination of employment;

·         Document the entire process so that it is clear what has been examined and considered by

             the employer and what the response of the employee is before any decision is made

             regarding the employee.

The complainant refers to the findings and conclusions of the equality officer in An Employee -v- A Multi-National Retails DEC-E2015-021   which further explains that while an employer is not obliged to retain an employee in a position if he/she is not fully capable, the employer is nonetheless subject to the obligation set out   in section 16(3) (b) of the Act with the proviso that any such measures would not impose a disproportionate burden on the employer. The complainant refers to An Employer v a Hotel EDA 0721 which underscored the obligation on the employer to proactively identify the special treatment or facilities necessary to maintain an employee in the employment.

Burden of Proof.

The complainant has a disability. He was dismissed without any consultation on lighter duties or alternative roles. The burden shifts to the respondent.

CA-00022543-002 Complaint under the Payment of Wages Act 1991

The complainant withdrew this complaint.

CA-00022543-004. Complaint under the Organisation of Working Time Act, 1997

The complainant states that his annual Leave entitlements accrued while he was out sick have not been paid to him.

Following discussion at the hearing he accepted that the outstanding amount owed to him was €1012.

CA-00022543-001

Time limits.

The respondent raised a preliminary point concerning the alleged failure to provide reasonable accommodation. They state it is a time barred matter as this issue has not been raised between January 2017 and March 2018. Only issues which occurred after 10 April 2018 are admissible.

The respondent rejects the claim that complainant was discriminatorily dismissed. He was fairly dismissed due to incapability to perform the role for which he was hired.

Burden of Proof.

The burden has not shifted. The respondent is entitled to rely on section 16 (1) of the Employment Equality Act, 1998,

The complainant went on certified sick leave on 14 September 2014 – 11 November 2016 having suffered angina. He was assessed by the Occupational; Health Consultant on 11/11/2016 and deemed fit to return as his medical condition was being managed appropriately. The only restrictions were that he should not lift weights in excess of 20 kg or above 15 kg if an awkward shape. He returned for a week and went on sick leave again on the 16 November until March 2018.

The respondent referred the complainant back to the Occupational Health Consultant in September 2017. The resultant report of the 8/9/2018 stated

“his prognosis, in terms of being able to make a successful return to his current job is extremely poor

“the complainant was highly unlikely to be able to return to work in the next 6-12 months.

corroboration should be sought from his treating cardiologist particularly with regard to his current investigations and level of cardiac function.

And

Very significant modifications would be required in order for him to be able to perform his job to the extent that could render the job to be unviable.

The Occupational Health Consultant issued a further report on the 25 January 2018, stating that he sees

“no realistic prospect of him being able to make a safe effective and sustained return to work”

His own GP submitted a report to the respondent on 30 January 2018 and refers to the cardiologist’s statement to the effect that he would be only able to work in a more sedentary environment. The GP repeats that he

“cannot envisage a foreseeable timeframe when there is likely to be sufficient functional improvement from both a physical and psychological perspective to allow him to make a safe and effective return to work”

The respondent met the complainant on the 9 March 2018 to consider the medical reports. The complainant stated that he would like to return to work but would accept whatever medical advice existed on the matter. He also stated that the company should go by the doctor’s reports.

Following the meeting and in the knowledge that all medical advice declared him unfit to return to work, the company issued him with a letter of dismissal on the 14 April on capability grounds. He was advised of his right to appeal the decision within 5 days. The complainant submitted a letter of appeal 2 months late. The appeal was based on his belief that the dismissal was discriminatory, and he wanted an independent hearing to review the dismissal and to place him in an alternative role.

The respondent area manager, Ms. B, conducted a review of the complainant’s dismissal. The decision to dismiss was upheld.

Alternative duties.

The respondent states that his duties included serving customers at the till, answering customer queries, placing stock on the shelves, and working in the stock room. The respondent states that the cash duties which the complainant identified as an alternative role take 10-20 minutes except for Mondays when it takes an hour.

In relation to his stated ability to do the tills, the complainant had not wished to spend periods standing at a till or indeed sitting at a till

The relevant law.

The respondent relies on section 16 (1) of the Employment Equality Act, 1998 in support of their position.

“16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

In relation to the acknowledged obligation which lies with an employer to provide reasonable accommodation, the respondent cites the last Occupational Health report, dated 25 January 2018, which states

“Thus, at the present time, he remains unfit for his normal or any modified duties, and I see no realistic prospect of him being able to make a safe and effective and sustained return to the workplace in any foreseeable future”

The claimant never contested the medical prognosis.

The Occupational Health Physician did not identify any reasonable accommodation nor did the complainant contest this. Had he done so same would have been explored. The respondent refers to the Occupational Health Consultant’s paraphrasing of the complainant’s Cardiologist who refers to the complainant’s statement that he would be only able to work in a sedentary position and that failure to provide same would generate stress for the complainant.

The respondent states that the onus is not on the employer to transfer the complainant to an alternative role or to create a new role, but rather to allow him to return to his   own role with adjustments and cite in support of this proposition the case of Hegarty Meats v Byrne. They in addition refer to par 63 of the Court of Appeal judgement in the case of Marie Daly v Nano Nagle School (2018) IECA 11,

“The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable. The fact of the matter is that Ms Daly is unable to perform the essential tasks of a special needs’ assistant. No accommodations can change that.”

The medical evidence demonstrated that no reasonable accommodation or modified duties would have rendered the complainant in the instant case fit to resume work. His incapability as set out in section 6(4) of the Unfair Dismissals Act, 1977 was the reason for his dismissal.

The complaint of discrimination is denied.

CA-00022543-002.

This complaint was withdrawn.

CA-00022543-004. Complaint under the Organisation of Working Time Act, 1997

The respondent stated that upon the termination of his employment he was owed the sum of €4044.82 in respect of the 305.5 hours accrued while on sick leave. Because they had mistakenly overpaid him to the amount of €3035 during periods while on sick leave- periods for which no entitlement to sick leave existed- they recouped this sum of €3035 in his final pay cheque of May 2018 not knowing that the complainant had previously submitted a cheque to the respondent for the sum of €1021 in reimbursement. They committed to making this payment of €1021 to the complainant should evidence of the cheque be found.

A month following the hearing, the respondent acknowledged that they had over deducted, had failed to take account of this reimbursement by the complainant and undertook to transfer the sum of €1021 into his account.

CA-00022543-001.

I am required to establish if the respondent met the obligations set out in section 16 (3) of the Act of 1998 and if the complainant was discriminatorily dismissed.

Time Limits.

I must first consider the respondent’s contention that the instances of alleged discrimination occurring before the 10 /10/18 are time barred.

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.”

The last acts of discrimination cited by the complainant are the notification of dismissal on 14 April 2018 and the failure to uphold his appeal against the dismissal on the 26 July- both of which are within the time limits. The appeal against his dismissal addressed the respondent’s obligation to provide reasonable accommodation. The next matter is whether these two instances are separate and distinct from the representations made by the complainant to the respondent concerning reasonable accommodation which he states go back to 2016. In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5)

“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.”

While the respondent disputes that the complainant raised the matter of reasonable accommodation prior to his dismissal, the respondent’s note of a meeting held between the complainant and Ms D, the store manager, on 9/1/2017 records the fact that the complainant is seeking reduced hours and raises questions about his ability to do the full range of tasks expected of him as a store assistant. He specified that his diabetes affects his stamina. He asks about alternative roles at the meeting of the 13 March 2018. He raises alternative accommodation in his letter of appeal against the dismissal on the 7 June. I find these references to reasonable accommodation extend back to 2017, are not stand-alone incidents, but are part of a continuum and hence admissible in accordance with the decision in Hurley. Accordingly, the respondent’s alleged failure to comply with section 16(3) of the Act of 1998 is an admissible matter for consideration.

The burden of proof.

The fact that the complainant has a disability in accordance with the definition set out in section 2 of the Act of 1998 is not contested

Having established his right to invoke the right to equal treatment on the disability grounds, I must now consider the second test which the complainant must satisfy in advancing his claim. The person making a complaint of discrimination is obliged by virtue of section 85A of the Acts to establish facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when these facts have been accepted as sufficient to raise an inference of discrimination that the onus moves to the respondent to rebut the inference of discrimination.

Has the complainant moved the burden of proof as required by section 85A of the Act as amended?

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

It is accepted that the complainant has a disability within the meaning of section 2 of the Act of 1998. The complainant was dismissed. No adjustments were offered to the complainant to enable him to continue in his work. I find that the respondent’s emphasis was on establishing his medical condition and capability to do the job. I find that that the respondent expended little energy on exploring alternatives. These facts raise the possibility that discrimination on the basis of his disability was within the range of possible motives for his dismissal. In these circumstances, I find that the complainant has met the evidential burden and that the onus shifts to the respondent to disprove that the complainant’s   dismissal could have been was avoided by the provision of reasonable accommodation by virtue of the obligation found in section 16 (3)(b) of the Act of 1998.

The Respondent’s rebuttal

I must therefore consider the respondent’s compliance with section 16(3) of the Act which states

c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

Compliance with section 16(3)

The three-pronged test outlined in the case of Humphries v Westwood Fitness Club (EED037; ED/02/59; ELR 296) and acknowledged in the Supreme Court’s decision of Marie Daly v Nano Nagle School (2019) IESC 000 (with a minor deviation on the extent of consultation which is required with the employee) is a useful benchmark to assess the respondent’s compliance with the requirement to provide reasonable accommodation. The test requires that the employer

•             Examine the factual position and seek clear medical guidance regarding the employee's

              capability including the degree of impairment arising from the disability and its likely

               duration;

I find that the respondent sought medical evidence and frequently. The medical prognosis delivered in 2018 indicates that the complainant was unlikely to be able to resume work with modifications nor was a return date provided. The report stated that a sedentary position was required. This was not challenged by the complainant.

The second limb of the test requires the employer to

•             Consider what reasonable accommodation or appropriate measures (including any special

               treatment or facilities) can be made available by which the employee may become fully

               competent to perform his or her role;

I find that there was little consideration of alternative roles. The respondent states that they would have provided reasonable accommodation had same been medically recommended by the Doctor. I find that the scope for the assigning the complainant to alternative tasks / roles was severely limited by the medical evidence to hand. The medical evidence from 2017 onwards provided no basis for a consideration of an alternative role. He was unfit for an indefinite period and even with modifications to his role. Whereas in 2016 he was taken off the till and packing shelves by the store manager. The uncontested evidence of a meeting of the 12/12/2016 has the respondent asking the complainant if he wishes to return on reduced hours and the complainant responding that he will seek medical advice on this and revert to the respondent. Other adjustments were made to assist him inn 2016.

During the period 2016-2018, the complainant did not identify any other role. The complainant advised that he was unable to perform many of the duties of a store assistant such as standing at a till, sitting for long periods, packing shelves or lifting goods in excess of 20 kg. The respondent was agreeable to relieve him of requirement to lift such goods. The complainant emphasised at the meetings called to consider the medical evidence concerning his absence due to ill health from November 2016 – March 2018 that he wanted to be guided by the medical advice including the Occupational Health Consultant’s report which declared him.

Over and above all of the efforts or lack of same to provide the complainant with reasonable accommodation, the complainant indicated that he wanted a different role to that of store assistant. The problem with this position is that according to the Supreme Court in its decision of Marie Daly v Nano Nagle School (2019) IESC 000, section 16(3) does notmake this demand on an employer. The court stated

“But I would again wish to emphasise that these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open -ended one…. The question is, rather to consider whether the degree of redistribution or “accommodation” is such as to create a different job entirely.

The Court went on to say that the issue is whether the complainant” is capable of performing that position or job, not another one”.

The third limb of the test requires the employer to

•             Consult with the employee along the way to ensure that the employee has a say in any

               decisions which could adversely impact their terms and conditions of employment or which

             could lead to the termination of employment.

I find that the employer did consult with the complainant throughout the process and did, prior to the meeting in March 2018, advise him of the possibility that his employment would be terminated by virtue of incapability.

I find that the respondent met this limb of the test laid out in Westwood.

The employer documented the processes used to arrive at the conclusion to dismiss the complainant.

The complainant did not challenge any of the Occupational Health reports.

I find on the basis of the evidence submitted that the respondent demonstrated that they had a bona fide belief that the claimant was not capable of performing his duties as a store assistant. This was based on medical evidence tendered and which was unchallenged by the complainant. The complainant was allowed to fully participate and present medical evidence.

I find on the basis of the written and oral evidence tendered and for the above reasons cited in this decision that the respondent can rely on the defence contained in section 16 (1) of the Act

“16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

I find that the respondent has rebutted the presumption of discrimination.

I do not uphold the complaint of discrimination on grounds of disability.

CA-00022543-002

This complaint was withdrawn.

CA-00022543-004.

I note that the complainant accepts that what the respondent owes him is the sum of €1012. The complainant however declined to withdraw this complaint and asked that a decision should issue on this matter.

I find that the at the termination of the complainant’s employment and at the hearing, the respondent had failed to comply with section 23(1) of the Organization of Working Time Act, 1997. I find the complaint to be well founded. I require the respondent to pay the complainant the sum of €1406 as compensation for this breach less the sum of €1012 paid to the complainant after the hearing. Therefore, the outstanding amount to be paid to the complainant is €394.

CA-00022543-001.

I do not uphold the complaint of discrimination on grounds of disability.

CA-00022543-002.

This complaint was withdrawn

CA-00022543-004.

I find this complaint to be well founded. I require the respondent to pay the complainant the sum of €1406 less the sum of €1012 paid to the complainant after the hearing, leaving an outstanding sum of €394.

Discrimination; alleged failure to provide reasonable accommodation; medical reports not supportive of reasonable accommodation.

Complainant

Respondent

Anonymised Parties

Store Assistant

Retail store

Representatives

Dublin City Centre Citizens Information Service

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-00022543-001

10/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00022543-002

10/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00022543-004

10/10/2018

CA-00022543-001

The complainant has worked as a store assistant with the respondent since 2004. He works 37.5 hours a week and earns an hourly rate of €12.50.

His complaint is that he was dismissed on 14/4/2018 on the grounds of his disability.

CA-00022543-002

The complainant states he is owed €2808 in holiday pay since 15/4/2018. In addition, he is owed a further €470 in respect of unpaid wages owed to him since January 2017.

CA-00022543-004.

He was not afforded his accrued annual leave entitlements in respect of periods spent on certified sick leave.

He submitted the above three complaints to the WRC on 10/10/2018.

CA-00022543-001

The complainant states that he was discriminated on the grounds of disability by not being given reasonable accommodation. He was discriminatorily dismissed on 14/4/2018.

Preliminary point.

In relation to the respondent’s argument that the claim is time barred, the complainant’s representative advised that the final acts of discrimination occurred on 14 April 2018 which was the notification of his dismissal and the appeal on the 7 June 2018, against the dismissal, both of which are within time and admissible.

He was diagnosed with a heart disease in September 2014. He went on sick leave from 14 September 2014 - 12 November 2016 with a diagnosis of angina. He returned to work on 11 November for a week on lighter duties – working mainly on the till for one week. In the second week after his return, the complainant was returned to heavier duties whereupon he experienced chest pain, sought medical assistance and was diagnosed with work related stress on 16 November 2016 and advised not to do any heavy duties. He on certified sick leave until the termination of his employment. In November 2016 he stated that he could work 19-20 hours and could lift weights below 20 kg.

The complainant states that while the company doctor declared him fit to resume work with no restrictions in January 2017, that assessment failed to consider his more recent illnesses – diabetes and resultant complications such as glaucoma, stress, anxiety and hypertension. It was an incomplete assessment. The respondent had discussed a return to work on shorter hours and with lighter duties at that time, but this was later refused in January 2017. He tried to return to work in January 2017, but his employer would not accommodate his disabilities by allowing him to work part-time or giving him lighter duties.

The complainant asked many times if they could consider shorter shifts or a different position for him within the company, but they would not even try.

In March 2018 the complainant met his manager to discuss his absence. He explained again that he could not return to work doing heavy lifting but that he would be able to do lighter duties. Again, his request was ignored.

The complainant received his dismissal letter on 14 April 2018.

There was no discussion of alternative roles.

The respondent made no efforts to accommodate his return to work. Ms D, the store manager, told him that lighter duties were not available.

After 14 years working at the company, he was let go with outstanding wages still owed and none of his annual leave paid to him.

Alternative duties

The complainant did not need training to perform lighter duties. His job title was that of Store Assistant which was not a fixed role. He could have worked in a part-time capacity at the till and in a caretaker role on a part time basis. Complainant states that he could have done the till and could have done the transfer of cash to the bank. He could have done some office work

Discrimination

The respondent is a large multi-national with many different roles within the organisation. Despite the complainant’s requests to be considered for other roles or lighter duties the respondent at no time considered these requests.

The complainant referred to the decision of Humphries -v- Westwood Fitness Club ELR 296 which set out the obligations on employers in relation to reasonable accommodation.

The employer is obliged to: -

·         Examine the factual position and seek clear medical guidance regarding the employee's

               capability including the degree of impairment arising from the disability and its likely

             duration;

·         Consider what, reasonable accommodation or appropriate measures (including any special

             treatment or facilities) can be made available by which the employee may become fully

             competent to perform his or her role;

·         Consult with the employee along the way to ensure that the employee has a say in any

             decisions which could adversely impact their terms and conditions of employment or which

             could lead to the termination of employment;

·         Document the entire process so that it is clear what has been examined and considered by

            the employer and what the response of the employee is before any decision is made

             regarding the employee.

The complainant refers to the findings and conclusions of the equality officer in An Employee -v- A Multi-National Retails DEC-E2015-021   which further explains that while an employer is not obliged to retain an employee in a position if he/she is not fully capable, the employer is nonetheless subject to the obligation set out in section 16(3) (b) of the Act with the proviso that any such measures would not impose a disproportionate burden on the employer. The complainant refers to An Employer v a Hotel EDA 0721 which underscored the obligation on the employer to proactively identify the special treatment or facilities necessary to maintain an employee in the employment.

Burden of Proof.

The complainant has a disability. He was dismissed without any consultation on lighter duties or alternative roles. The burden shifts to the respondent.

CA-00022543-002 Complaint under the Payment of Wages Act 1991

The complainant withdrew this complaint.

CA-00022543-004. Complaint under the Organisation of Working Time Act, 1997

The complainant states that his annual Leave entitlements accrued while he was out sick have not been paid to him.

Following discussion at the hearing he accepted that the outstanding amount owed to him was €1012.

CA-00022543-001

Time limits.

The respondent raised a preliminary point concerning the alleged failure to provide reasonable accommodation. They state it is a time barred matter as this issue has not been raised between January 2017 and March 2018. Only issues which occurred after 10 April 2018 are admissible.

The respondent rejects the claim that complainant was discriminatorily dismissed. He was fairly dismissed due to incapability to perform the role for which he was hired.

Burden of Proof.

The burden has not shifted. The respondent is entitled to rely on section 16 (1) of the Employment Equality Act, 1998,

The complainant went on certified sick leave on 14 September 2014 – 11 November 2016 having suffered angina. He was assessed by the Occupational; Health Consultant on 11/11/2016 and deemed fit to return as his medical condition was being managed appropriately. The only restrictions were that he should not lift weights in excess of 20 kg or above 15 kg if an awkward shape. He returned for a week and went on sick leave again on the 16 November until March 2018.

The respondent referred the complainant back to the Occupational Health Consultant in September 2017. The resultant report of the 8/9/2018 stated

“his prognosis, in terms of being able to make a successful return to his current job is extremely poor

“the complainant was highly unlikely to be able to return to work in the next 6-12 months.

corroboration should be sought from his treating cardiologist particularly with regard to his current investigations and level of cardiac function.

And

Very significant modifications would be required in order for him to be able to perform his job to the extent that could render the job to be unviable.

The Occupational Health Consultant issued a further report on the 25 January 2018, stating that he sees

“no realistic prospect of him being able to make a safe effective and sustained return to work”

His own GP submitted a report to the respondent on 30 January 2018 and refers to the cardiologist’s statement to the effect that he would be only able to work in a more sedentary environment. The GP repeats that he

“cannot envisage a foreseeable timeframe when there is likely to be sufficient functional improvement from both a physical and psychological perspective to allow him to make a safe and effective return to work”

The respondent met the complainant on the 9 March 2018 to consider the medical reports. The complainant stated that he would like to return to work but would accept whatever medical advice existed on the matter. He also stated that the company should go by the doctor’s reports.

Following the meeting and in the knowledge that all medical advice declared him unfit to return to work, the company issued him with a letter of dismissal on the 14 April on capability grounds. He was advised of his right to appeal the decision within 5 days. The complainant submitted a letter of appeal 2 months late. The appeal was based on his belief that the dismissal was discriminatory, and he wanted an independent hearing to review the dismissal and to place him in an alternative role.

The respondent area manager, Ms. B, conducted a review of the complainant’s dismissal. The decision to dismiss was upheld.

Alternative duties.

The respondent states that his duties included serving customers at the till, answering customer queries, placing stock on the shelves, and working in the stock room. The respondent states that the cash duties which the complainant identified as an alternative role take 10-20 minutes except for Mondays when it takes an hour.

In relation to his stated ability to do the tills, the complainant had not wished to spend periods standing at a till or indeed sitting at a till

The relevant law.

The respondent relies on section 16 (1) of the Employment Equality Act, 1998 in support of their position.

“16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

In relation to the acknowledged obligation which lies with an employer to provide reasonable accommodation, the respondent cites the last Occupational Health report, dated 25 January 2018, which states

“Thus, at the present time, he remains unfit for his normal or any modified duties, and I see no realistic prospect of him being able to make a safe and effective and sustained return to the workplace in any foreseeable future”

The claimant never contested the medical prognosis.

The Occupational Health Physician did not identify any reasonable accommodation nor did the complainant contest this. Had he done so same would have been explored. The respondent refers to the Occupational Health Consultant’s paraphrasing of the complainant’s Cardiologist who refers to the complainant’s statement that he would be only able to work in a sedentary position and that failure to provide same would generate stress for the complainant.

The respondent states that the onus is not on the employer to transfer the complainant to an alternative role or to create a new role, but rather to allow him to return to his own role with adjustments and cite in support of this proposition the case of Hegarty Meats v Byrne. They in addition refer to par 63 of the Court of Appeal judgement in the case of Marie Daly v Nano Nagle School (2018) IECA 11,

“The point is a simple one: the statutory duty is objectively concerned with whether the employer complied with the obligation to make reasonable accommodation. If no reasonable adjustments can be made for a disabled employee, the employer is not liable. The fact of the matter is that Ms Daly is unable to perform the essential tasks of a special needs’ assistant. No accommodations can change that.”

The medical evidence demonstrated that no reasonable accommodation or modified duties would have rendered the complainant in the instant case fit to resume work. His incapability as set out in section 6(4) of the Unfair Dismissals Act, 1977 was the reason for his dismissal.

The complaint of discrimination is denied.

CA-00022543-002.

This complaint was withdrawn.

CA-00022543-004. Complaint under the Organisation of Working Time Act, 1997

The respondent stated that upon the termination of his employment he was owed the sum of €4044.82 in respect of the 305.5 hours accrued while on sick leave. Because they had mistakenly overpaid him to the amount of €3035 during periods while on sick leave- periods for which no entitlement to sick leave existed- they recouped this sum of €3035 in his final pay cheque of May 2018 not knowing that the complainant had previously submitted a cheque to the respondent for the sum of €1021 in reimbursement. They committed to making this payment of €1021 to the complainant should evidence of the cheque be found.

A month following the hearing, the respondent acknowledged that they had over deducted, had failed to take account of this reimbursement by the complainant and undertook to transfer the sum of €1021 into his account.

CA-00022543-001.

I am required to establish if the respondent met the obligations set out in section 16 (3) of the Act of 1998 and if the complainant was discriminatorily dismissed.

Time Limits.

I must first consider the respondent’s contention that the instances of alleged discrimination occurring before the 10 /10/18 are time barred.

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.”

The last acts of discrimination cited by the complainant are the notification of dismissal on 14 April 2018 and the failure to uphold his appeal against the dismissal on the 26 July- both of which are within the time limits. The appeal against his dismissal addressed the respondent’s obligation to provide reasonable accommodation. The next matter is whether these two instances are separate and distinct from the representations made by the complainant to the respondent concerning reasonable accommodation which he states go back to 2016. In Hurley v County Cork VEC (EDA 1124), the Labour Court held in respect of sections 77(5)

“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.”

While the respondent disputes that the complainant raised the matter of reasonable accommodation prior to his dismissal, the respondent’s note of a meeting held between the complainant and Ms D, the store manager, on 9/1/2017 records the fact that the complainant is seeking reduced hours and raises questions about his ability to do the full range of tasks expected of him as a store assistant. He specified that his diabetes affects his stamina. He asks about alternative roles at the meeting of the 13 March 2018. He raises alternative accommodation in his letter of appeal against the dismissal on the 7 June. I find these references to reasonable accommodation extend back to 2017, are not stand-alone incidents, but are part of a continuum and hence admissible in accordance with the decision in Hurley. Accordingly, the respondent’s alleged failure to comply with section 16(3) of the Act of 1998 is an admissible matter for consideration.

The burden of proof.

The fact that the complainant has a disability in accordance with the definition set out in section 2 of the Act of 1998 is not contested

Having established his right to invoke the right to equal treatment on the disability grounds, I must now consider the second test which the complainant must satisfy in advancing his claim. The person making a complaint of discrimination is obliged by virtue of section 85A of the Acts to establish facts upon which he can rely in asserting that he suffered discriminatory treatment. It is only when these facts have been accepted as sufficient to raise an inference of discrimination that the onus moves to the respondent to rebut the inference of discrimination.

Has the complainant moved the burden of proof as required by section 85A of the Act as amended?

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201 the Labour Court concluded that”

“a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

It is accepted that the complainant has a disability within the meaning of section 2 of the Act of 1998. The complainant was dismissed. No adjustments were offered to the complainant to enable him to continue in his work. I find that the respondent’s emphasis was on establishing his medical condition and capability to do the job. I find that that the respondent expended little energy on exploring alternatives. These facts raise the possibility that discrimination on the basis of his disability was within the range of possible motives for his dismissal. In these circumstances, I find that the complainant has met the evidential burden and that the onus shifts to the respondent to disprove that the complainant’s dismissal could have been was avoided by the provision of reasonable accommodation by virtue of the obligation found in section 16 (3)(b) of the Act of 1998.

The Respondent’s rebuttal

I must therefore consider the respondent’s compliance with section 16(3) of the Act which states

c) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates.

(d) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

Compliance with section 16(3)

The three-pronged test outlined in the case of Humphries v Westwood Fitness Club (EED037; ED/02/59; ELR 296) and acknowledged in the Supreme Court’s decision of Marie Daly v Nano Nagle School (2019) IESC 000 (with a minor deviation on the extent of consultation which is required with the employee) is a useful benchmark to assess the respondent’s compliance with the requirement to provide reasonable accommodation. The test requires that the employer

•             Examine the factual position and seek clear medical guidance regarding the employee's

                 capability including the degree of impairment arising from the disability and its likely

               duration;

I find that the respondent sought medical evidence and frequently. The medical prognosis delivered in 2018 indicates that the complainant was unlikely to be able to resume work with modifications nor was a return date provided. The report stated that a sedentary position was required. This was not challenged by the complainant.

The second limb of the test requires the employer to

•             Consider what reasonable accommodation or appropriate measures (including any special

               treatment or facilities) can be made available by which the employee may become fully

               competent to perform his or her role;

I find that there was little consideration of alternative roles. The respondent states that they would have provided reasonable accommodation had same been medically recommended by the Doctor. I find that the scope for the assigning the complainant to alternative tasks / roles was severely limited by the medical evidence to hand. The medical evidence from 2017 onwards provided no basis for a consideration of an alternative role. He was unfit for an indefinite period and even with modifications to his role. Whereas in 2016 he was taken off the till and packing shelves by the store manager. The uncontested evidence of a meeting of the 12/12/2016 has the respondent asking the complainant if he wishes to return on reduced hours and the complainant responding that he will seek medical advice on this and revert to the respondent. Other adjustments were made to assist him inn 2016.

During the period 2016-2018, the complainant did not identify any other role. The complainant advised that he was unable to perform many of the duties of a store assistant such as standing at a till, sitting for long periods, packing shelves or lifting goods in excess of 20 kg. The respondent was agreeable to relieve him of requirement to lift such goods. The complainant emphasised at the meetings called to consider the medical evidence concerning his absence due to ill health from November 2016 – March 2018 that he wanted to be guided by the medical advice including the Occupational Health Consultant’s report which declared him.

Over and above all of the efforts or lack of same to provide the complainant with reasonable accommodation, the complainant indicated that he wanted a different role to that of store assistant. The problem with this position is that according to the Supreme Court in its decision of Marie Daly v Nano Nagle School (2019) IESC 000 , section 16(3) does notmake this demand on an employer. The court stated

“But I would again wish to emphasis that these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open -ended one…. The question is, rather to consider whether the degree of redistribution or “accommodation” is such as to create a different job entirely.

The Court went on to say that the issue is whether the complainant” is capable of performing that position or job, not another one”.

The third limb of the test requires the employer to

•             Consult with the employee along the way to ensure that the employee has a say in any

               decisions which could adversely impact their terms and conditions of employment or which

             could lead to the termination of employment.

I find that the employer did consult with the complainant throughout the process and did, prior to the meeting in March 2018, advise him of the possibility that his employment would be terminated by virtue of incapability.

I find that the respondent met this limb of the test laid out in Westwood.

The employer documented the processes used to arrive at the conclusion to dismiss the complainant.

The complainant did not challenge any of the Occupational Health reports.

I find on the basis of the evidence submitted that the respondent demonstrated that they had a bona fide belief that the claimant was not capable of performing his duties as a store assistant. This was based on medical evidence tendered and which was unchallenged by the complainant. The complainant was allowed to fully participate and present medical evidence.

I find on the basis of the written and oral evidence tendered and for the above reasons cited in this decision that the respondent can rely on the defence contained in section 16 (1) of the Act

“16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

I find that the respondent has rebutted the presumption of discrimination.

I do not uphold the complaint of discrimination on grounds of disability.

CA-00022543-002

This complaint was withdrawn.

CA-00022543-004.

CA-00022543-001.

I do not uphold the complaint of discrimination on grounds of disability.

CA-00022543-002.

This complaint was withdrawn

CA-00022543-004.

I find this complaint to be well founded. I order the respondent to pay the complaint the sum of €1406 in compensation for a breach of the Act of 1997.

Discrimination; alleged failure to provide reasonable accommodation; medical reports not supportive of reasonable accommodation.