Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Public Service Entity

Representatives

Forsa

Peter Leonard B.L instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00026818-001

05/03/2019

The complainant commenced work with the respondent on February 12th, 2018 as a Clerical Officer.

Following a number of reviews during his probationary process the respondent decided not to offer him a permanent position following the nine-month review. This news had a very adverse effect on the complainant and his family, and he consulted various advisors, one of whom recommended that he resign his position.

Another was his GP who identified a condition which the complainant had which may have been affecting his performance; hypothyroidism.

This can lead to fatigue, mood and cognitive issues depression and memory lapses.

The complainant found it difficult to disclose his condition (for reasons which were explained at the hearing) and therefore he had not declared this disability on the relevant form at the commencement of his employment, as required by the employer, and also because he hoped there would be no adverse manifestation of the condition.

The complainant appealed the decision regarding his permanency on December 7th. This was an internal appeal and not an independent appeal as asserted by the respondent. He was granted an oral hearing which took place on December 20th.

At that meeting he was accompanied by a trade union representative and he disclosed his medical condition at that stage. The decision maker requested that the complainant submit medical certification of the condition by January 7th, but the complainant was not able to access a consultant within that timeframe because of the holiday season.

However, he did submit a medical certificate from his GP dated January 3rd, 2019 which confirmed the diagnosis and its effects.

The complainant submits that with effect from December 20th when the respondent became aware of the disability up to January 14th when the complainant resigned the failure by the respondent to provide reasonable accommodation for his disability is a breach of the Employment Equality Acts and a number of authorities were relied on in support of this case.

The respondent made no effort to provide accommodation during this period.

The Appeal decision maker upheld the recommendation of the probation review that the complainant not be made permanent and, in his report makes only cursory reference to the disability.

Likewise, he did not seek further medical opinion in relation to the certification provided by the complainant’s GP.

The accommodation sought would not have placed a disproportionate burden of the respondent and its failure to properly inquire into the nature and impact of the disability o the performance of the complainant renders it in breach of the Acts.

The respondent notes that the complainant has not specified the form of reasonable accommodation which he required, and the only form this could have taken was an extension of the probation.

All three of his probation reviews had been poor.

He had not declared his disability at the start of his employment and gave an incorrect and therefore misleading answer to a declaration form on his first day of employment.

The complainant has not supplied medical evidence that he suffers from a disability that impacted on his performance and the letter from his GP simply stated that his condition caused ‘problems’ without saying whether they impacted on his performance at work.

More significantly. the letter from the GP) confirmed that the complainant had no impairment since June 2018 and two of the periods covered by the probation, and the associated assessments post-dated this.

Secondly, there is authority for the proposition that a deliberate and dishonest failure to disclose a disability for a lengthy period has the consequence that the usual obligations to provide reasonable accommodation do not apply. This failure to disclose has been admitted by the complainant.

The only part of the complainant’s employment to which any obligation can be said to exist is that between the disclosure on December 20th and January 14th.

The Appeals officer did consider the submission regarding his disability as required by the test in Humphries v Westwood ([2004] 15 ELR 296).

The complainant’s performance did not improve in either of these periods.

Also, in respect of the earlier period the complainant had other distractions in the form of a college commitment which could explain his poor performance.

The respondent has a commitment to employing people with a disability and has a target of 3% which it has consistently met, and it provides information on the support for such employees at induction.

There were other employees who started with the complainant who availed of these supports and declared, in one case on the day of the induction meeting and, in the case of three others, during the month of February.

Various authorities were submitted which underpinned the proposition that where an employee has deliberately failed to disclose a disability then the Humphries v Westwood principles do not apply (An Employee v A Medical Clinic and An Employee v A Logistics Company).

The complainant has not met the burden of proof in three respects.

The first is that he had not established that he suffers from a disability that impacted on his performance.

Secondly, his failure to declare any alleged disability removes the obligations on the respondent to provide reasonable accommodation, and finally, the only period where any obligation arose was between December 20th and January 14th when the complainant resigned when it fulfilled its obligations.

Extensive references were made in the course of the hearing and throughout the submissions to the leading case; Humphries v Westwood Fitness Club [2004] 15 ELR 296 a decision of the Labour Court subsequently approved by the Circuit Court.

It envisages a number of tests and stages.

There is a complete defence under s.16 of the Employment Equality Act 1998 to a claim of discrimination on grounds of disability under s.8, if it can be shown that the respondent formed a bona fide belief that the claimant was not fully capable of performing the duties for which she was employed.

(3) In order to form such belief, the respondent would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances but would at a minimum involve looking at medical evidence to determine the level of impairment arising from the disability and its duration. If it is apparent that the employee is not fully capable, the respondent is required under s.16(3) to consider what if any special treatment or facilities may be available by which the employee can become fully capable and account must be taken of the cost of such facilities or treatment.

(4) Such enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.

The stages will be clear from this. There must initially be a ‘complete inquiry’ which involve looking at medical evidence.

An employer must then consider what special treatment or facilities might place the employee in a position to become fully capable. Then finally there is a requirement that the employee be fully involved in the process.

Not visible in the above extract is the requirement that the accommodation be proportionate.

But in this case not only was the employer not aware of the existence of a disability but the complainant had deliberately concealed it.

While the timing was unfortunate there seems little reason to expect, and there was no evidence at the hearing to suggest that a consultant would have contradicted the GP view that the complainant had been free of effects of the disability for the greater part of the period during which he was being assessed (i.e. from June 2018).

In fact, what the GP stated was that since that date his ‘thyroid levels are very well controlled with no evidence of complications.’

It is hard to understand how the complainant saw this letter as assisting his cause on January 7th.

More critically how can this provide any basis for the provision of reasonable accommodation when, at least at that time and for the previous seven months there had been no manifestation of the disability, much less impacts arising from it.

The respondent relied on various decisions (such as An Employee v A Medical Clinic DEC-E/2013/006 to support the view that the withholding of medical information relieved an employer of the obligations of the Humphries test.

But the facts as set out raise a more fundamental question as to what the complainant actually was looking for in the period December 20th to January 14th (when he resigned) and in respect of what precisely he sought accommodation.

He did not by that point have any manifestation of a disability nor did he offer the hearing (or, at the time, the respondent) any evidence that it had impacted on his performance; it had been inactive for seven months, he did not specify what form of accommodation he was seeking.

There is very little ordinary logic to the complaint, to say nothing of a legal basis.

The burden of proof falls on the complainant.

The Employment Equality Act states;

‘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 to the contrary’

Section 85A

The Labour Court has further clarified this in Melbury Developments v Arturs Valpeters EDA 0917 as the obligation to ‘establish facts from which discrimination may be inferred’ and that these must be established as credible evidence, and not ‘mere speculation or assertions’.

I find that the complainant has not met this standard and the complaint fails.

For the reasons set out above I find that complaint CA-00026818-001 is not well-founded.

Disability, reasonable accommodation, burden of proof.