Complainant

Respondent

Anonymised Parties

A horticultural worker

A fruit producer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006185-001

28/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00006185-002

28/07/2016

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

CA-00005002-001

02/06/2016

The complainant was a horticultural worker, employed in the production and picking of fruit. In 2012, her roles were restricted on medical advice. In 2016, she was dismissed on capacity grounds. She claims that the respondent ceased the reasonable accommodation provided to her in breach of the Employment Equality Act. She asserts that her dismissal was unfair, or she has a redundancy lump sum entitlement. The respondent denies the claims.

The complainant outlined she injured her wrist at work in 2012 while using a particular tool for strawberry planting. The medical advice was that this task caused her difficulties. The complainant was provided with reasonable accommodation between 2012 and 2016. She was given a permanent contract on the 3rd April 2014. She had been a contracted, seasonal worker before that. In 2012, the complainant earned €20,000 per year; €19,700 in 2013; €15,200 in 2014 and €11,100 in 2015. She had no earnings in 2016.

The complainant took personal injury proceedings arising from her workplace injury, which settled in April 2016. She continued to work throughout this period. With reasonable accommodation, the complainant could do the tasks assigned to her. In June 2016, there were rostered positions for the various duties she had previously carried out. The complainant was not rostered, and excuses were made. She was referred to a medical examination. The complainant was dismissed in July 2016.

The complainant submitted that the respondent discriminated against her on grounds of her disability, related to her wrist. The dismissal was also unfair as she was not given disciplinary warnings. There were tasks and jobs available for her and she had been doing these tasks for 3.5 years. However, she settled her case and was then dismissed. The complainant obtained her own medical report, which stated that she was fit to do these tasks. There were also husbandry jobs available.

In evidence, the complainant said that she generally worked for eight months of the year, between April and November. After the injury, she marked rows and picked blueberries and raspberries. She also picked strawberries without the stem. She used her left hand as her right hand was injured. She worked eight hours per day and five or six days per week. The respondent sometimes sent her home when there was no work.

The complainant did not work in 2016. It was a late season because of the harsh winter. There was marking work to do in June 2016, but the complainant was not rostered. The complainant said that she would like to get her job back and to obtain compensation. She had looked for employment since 2016 and declared on her CV that she had the injury. She could not find work for five months. She then became pregnant and stopped looking for work. She will now get family support in order to allow her look for work again.

In additional submissions, the complainant said that the 2016 season began in April, but she was not given work. The personal injury proceedings settled in April. She could not locate the physiotherapy report that she obtained, and it is not clear whether this was sent to the respondent. She marked rows and picked raspberries and blueberries in 2014. She said that it was difficult to use the handheld scanner as the role also involved lots of writing and moving and lifting boxes.

The complainant disputed the letter from the first occupational health doctor in May 2016. She said that this doctor had only asked if she felt pain and discussed the jobs she was unable to do. She told him that her condition had not worsened and that she could do the tasks previously assigned to her. The doctor, however, said that her condition had deteriorated.

The complainant outlined that the referrals to the two occupational health doctors in May and June 2016 set out the full tasks of a horticultural worker. The response of the second occupational health doctor did not address her tasks of the previous year. She told that the doctors that she could do more than the three tasks listed as there were other light duties. The complainant said that she could not sow after 2012, but her condition did not really deteriorate. She had appealed the dismissal, but this was not successful.

The respondent denied the complaints of discrimination, unfair dismissal and that the complainant was entitled to a redundancy lump sum payment. It outlined that the complainant started work as a horticultural worker on a fixed-term contract in April 2010. She received a second fixed-term contract in March 2011, which was also extended in 2012. There were ten separate medical reports since her reporting the injury in February 2012 until her dismissal on grounds of frustration. It submitted that the complainant was provided with reasonable accommodation.

A welfare meeting took place on the 22nd November 2013 where they discussed the problems set out in the handwritten notes. This was the note of the HR generalist (not present at the adjudication). The complainant was given a permanent contract in 2014 because she was a good employee. It was the respondent’s goal that the complainant would recover. The 22nd July 2014 medical report highlights issues with blackberry and strawberry picking. The report recommends that all picking duties cease.

The medical report of the 3rd December 2014 refers to difficulties arising from all gripping actions. The duties became more restrictive as time moved on. The report of the 22nd April 2015 restricts the complainant to raspberries and blueberries. In 2016, the complainant was scheduled to return to work in May, at the time of the blueberries. She could not do the husbandry work in the early part of the season. By letter of the 26th April 2016, the respondent informed the complainant that she would return in June. By letter of the 11th May 2016, the complainant sought to return to work earlier. Marking rows, however, was a supervisory role and not within the complainant’s job description. The respondent responded by referring the complainant to a medical examination and gave the list of six jobs being carried out at the moment. The respondent asked whether the complainant could do these jobs.

In submissions, the respondent said that there was no redundancy as the complainant was unable to do the work. This was frustration of contract due to her ill-health, based on medical reports. No medical evidence was presented to challenge those findings. The respondent had to act on the medical advice. The respondent implemented fair procedures and the complainant did not avail of the appeal. There is an obligation for her to do so.

The respondent provided reasonable accommodation and restricted her duties to three tasks. It was the doctors who said that she was not fit for work. There was a progressive worsening of her condition.

There was no link between settling the personal injury proceedings as the insurer took over the claim and did not consult the respondent. The settlement cheque was issued on the 30th May 2016, after the referral to the occupational health doctor. The complainant’s contracts were renewed, and she was given permanent status during the currency of the personal injury proceedings. The referral to occupational health was made in the context of the complainant asking to go back to work and the previous year’s report. It is not credible that two doctors changed their view because of settled personal injury proceedings.

The number of raspberries and blueberries depend on the season and they are part of the team’s duties. There is not one person doing one job as it is a process that all workers do. The respondent pays more to pickers who pick higher amounts. It was not reasonable to continue this accommodation. In April 2015, the complainant picked raspberries and blueberries on the back of the medical letter. In 2014, the complainant was subject to a restriction of all fruit picking and all husbandry tasks. She also could not hold the device used to record picking. This was initially recommended for the complainant but later restricted.

The restriction of three tasks was a temporary measure, pending her return to the full role. This is set out in the 2nd April 2015 medical report which restricts her duties and refers to 12 months. The report of the 22nd July 2014 recommends that the complainant be restricted from duties in the short term to facilitate her recovery,

The complainant’s condition deteriorated over the four years. The respondent invested to help the complainant. All contracts refer to the complainant being employed as a horticulture farm worker and not a raspberry picker. This accommodation was offered for 12 months to assist recovery. It was not reasonable for this accommodation to continue forever.

CA-00005002-001

Counters of the complaint

This is a complaint pursuant to the Employment Equality Act. The complaint form sets out that it relates to discrimination on the grounds of disability, although the box for ‘discriminatory dismissal’ is also ticked. The complaint was lodged on the 2nd June 2016 at the time when the complainant was an employee of the respondent. I note that the first occupational health assessment had raised the prospect of the complainant finding alternative employment and this was discussed at the meeting with HR on the 2nd June 2016. I also note that the complaint was lodged prior to the further referral to occupational health and the meeting with HR of the 23rd June 2016 to discuss the occupational health assessments. The complaint was lodged before the decision to dismiss on the 20th July 2016.

Given that the complainant submitted a second complaint pursuant to the Unfair Dismissals Act, section 101(4A) was applied to the discriminatory dismissal element of CA-00005002-001. Section 101(4A) requires parties to elect between claims of discriminatory dismissal and unfair dismissal. If no election is made, then the former is deemed withdrawn. In this case, the complainant did not elect (she said that she did not understand the letter from the Workplace Relations Commission). It follows that the claim of discriminatory dismissal is withdrawn.

There remains the discrimination element of the complaint, as selected in the complaint form and set out in the narrative. Section 101(4A) has not application to a claim of discrimination. This is clear as the provision states that the complaint “shall, in so far only as it relates to such dismissal be deemed to have been withdrawn.” (my emphasis)

Burden of proof

Section 85A of the Employment Equality Act requires the complainant to establish facts of such significance that raise a prima facie inference of discrimination. Once the complainant has done this, it falls on the respondent to rebut the inference of discrimination.

Disability

It was not disputed that the complainant has a disability within the ambit of the Employment Equality Act. This was set out in the medical assessments obtained by respondent. They detail the injury to the complainant’s right wrist and the restriction this has on her use of her hand in work and at home. It is clearly long-term, having been acquired in 2012.

Reasonable accommodation / disproportionate burden

The question is whether the respondent complied with its obligation to provide reasonable accommodation under section 16 of the Employment Equality Act. If the employer did not provide reasonable accommodation of her disability, then the complainant has made out the claim of discrimination (see the approach in A Government Department v A Worker EDA0612).

Central to this case is whether the ongoing provision of reasonable accommodation in the form of restricted tasks represented a disproportionate burden on the respondent.

European law background

Recital 20 of Directive 2000/78 provides:

“Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.”

Recital 21 addresses “disproportionate burden”. It provides:

“To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.”

Article 5 of the Directive addresses reasonable accommodation for disabled persons. It states:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

The obligation in Irish law

Section 16(1) of the Employment Equality Act provides:

“(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.”

The Equality Act, 2004 amended section 16(3) of the Employment Equality Act to reflect the broader obligations imposed by the Directive. The amended section reads:

“(3)(a) For the purposes of this section, 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.

(b) An 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 and advance in employment,

(iii) To undergo training,

unless the measures would impose a disproportionate burden on the employer.”

Section 16(3)(c) provides as follows in respect of disproportionate burden:

“(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of –

(i) The financial and other costs entailed

(ii) The scale and financial resources of the employer’s business,

(iii) The possibility of obtaining public funding or other assistance.”

Application to the case

Assessing reasonable accommodation and disproportionate burden are questions of reasonableness and proportionality in the light of the above statutory provisions.

The complainant acquired a wrist injury in 2012. The respondent arranged for her to attend occupational health assessments, for example four in 2012. There were further assessments between 2012 and 2016. The respondent also arranged for the complainant to attend physiotherapy in early 2015. This ended after three sessions as it did not improve her symptoms. The respondent took these steps and also arranged for an interpreter to attend with the complainant and on at least one occasion, for a taxi to bring her to physiotherapy. While the follow-up medical report of the 22nd April 2015 refers to the complainant’s situation as not improving, she is deemed fit to work three duties: raspberry and blueberry picking and marking rows.

The medical opinions indicated that the complainant should not perform heavy lifting and later restricted her duties. There was a recommendation that the complainant be given the quality control role. This did not work out as it involved repetitive wrist action, using a scanner as well as writing and lifting. There was also a suggestion that the complainant do the ‘flowers out’ role, but this was later contraindicated.

It is a feature of this case that the complainant was assigned hours according to the business needs of the respondent. As set out in the meeting minutes of the 11th May 2015, the complainant had no guarantee of hours of work or pay. There was an annual period of winter lay-off when the complainant was not assigned work because of the seasonality of fruit growing. The complainant’s period of lay-off extended in the years her duties were restricted. As she set out in her evidence, her income decreased because of her reduced hours and the fewer tasks she could do.

The complainant worked the restricted list of duties between 2012 and 2015. As noted, she attempted to expand this range of duties, but this was not successful. She attended several occupational health assessments, although there was only one assessment in each of 2013, 2014 and 2015. In 2016, the complainant was initially scheduled to return to work on the 2nd May 2016 but was informed on the 26th April 2016 that this was delayed until the 6th June 2016. The reason cited is the weather-related delay to the start of raspberry picking. She did not return to work and was referred to occupational health assessments in May and June 2016.

The respondent outlined that the reasonable accommodation offered to the complainant could not continue. It asserts that this was a temporary restriction, citing, for example, the period of 12 months referred to in the occupational health letter of the 22nd April 2015. This report is provided by the occupational health doctor and is not generated by the respondent.

It is not clear from the respondent’s correspondence in early 2016 that it was expecting the complainant to return to full duties in that year. It was regular for the respondent to write to the complainant at the end of the season to give a date for her return from lay-off (see the letters of the 30th November 2012 and the 20th December 2013). In the letter of the 4th December 2015, the respondent informs the complainant of the winter shutdown and that it would be in a position to offer her work from the 2nd May 2016. The letter of the 26th April 2016 delays the restart to the 6th June 2016 due to the delay in raspberry harvesting.

The question that arises is if the complainant was expected to return to full duties in 2016, why was she not asked to return to work earlier in the year? More significantly, why was the complainant’s return postponed because of the delayed raspberry season when she was expected to be on full duties. I attach significance to the reference in the letter of the 26th April 2016 to raspberry picking as this was one of the two fruit the complainant was deemed fit to pick. I infer from the letter that the intention in April 2016 was that the complainant would be returning to her restricted duties in that year.

On the issue of disproportionate burden, the note to file of the 13th December 2013 refers to the respondent not being able to continue the reasonable accommodation because of the additional administrative and time burden in planning one person doing specific tasks. It states that the planning team is 1.5 people and that they roster over 400 staff, managing fluctuations in weather, work etc. The minutes of the meeting of the 22nd May 2014 refers to the unreasonable administrative burden of the complainant being on restricted duties. The minutes of the meeting of the 11th May 2015 sets out the reasonable accommodation to be offered to the complainant and refers to this as a trial. The minutes record concern if the picking team is required to change fruit, so that, for example, they are no longer picking raspberries but now picking strawberries. The concern is that the complainant would now have to carry out a task for which she was contraindicated.

While there was ongoing discussion of what tasks the complainant could do and ongoing medical referrals, there was also ongoing work and reasonable accommodation. The complainant worked the restricted duties over four years. While there was concern expressed about the complainant joining colleagues in doing duties contraindicated for her, there is no evidence that this problem actually occurred.

I accept that the reasonable accommodation provided, i.e. the tailored provision of duties to a staff member, would inevitably place some burden on the employer. I find that there is, however, insufficient evidence that this burden was disproportionate. While there are general references to the burden being “unreasonable” or imposing additional administration and taking time, this does not show that the burden was disproportionate, rather than something inconvenient. As required by the statute, I must take account of any financial losses incurred by the employer and its resources. I note that the employer incurred no particular financial loss; it was the complainant who incurred loss of income. I also note the respondent’s resources and scale; it is a large and successful producer of fruit and other agricultural products. It manages a large team of farm workers, including colleagues given accommodation on grounds of pregnancy etc. I find that continuing the complainant’s reasonable accommodation into 2016 was not a disproportionate burden for the respondent.

For completeness, I note that the respondent did not ask the occupational health doctors in May and June 2016 about the complainant’s fitness to continue the three tasks she had previously been accommodated with. Instead, they were asked to assess the complainant against six tasks: “harvesting/picking, weeding, cutting leaves, derunner, flowers out / leaves in and checking quality”. The complainant challenged the accuracy of the May 2016 assessment and strongly denied that her condition had deteriorated. Correctly, the respondent arranged for a second assessment. This too asked for an assessment against all the tasks of the horticulture farm worker and, inevitably, the complainant was deemed unfit for the whole role. Neither assessment considered the complainant’s ability to resume the three tasks.

I have found that the respondent less favourably treated the complainant in ceasing the reasonable accommodation provided to her. This is a contravention of the Employment Equality Act on the disability ground. Of course, there is no claim for discriminatory dismissal, and I cannot take into account that the complainant was later dismissed by the respondent.

In assessing redress in respect of the failure to continue reasonable accommodation / discrimination, I note that the complainant was entitled to work the 2016 season on the same restricted basis as she had done in previous years. It was not disproportionate to allow her resume these duties. I note the need for redress to be effective, dissuasive and proportionate. Taking the reasonable accommodation provided by the respondent as well as the effect of discontinuing this, and the overall circumstances of the case, I award redress of €12,000.

CA-00006185-001

This is a complaint pursuant to the Unfair Dismissals Act. The respondent dismissed the complainant on the 20th July 2016 on grounds of frustration and the lack of capacity to do the role.

The complainant was a horticultural worker. On the 14th December 2011, the complainant signed a job description for this role. This was supplied to her in English and Polish. The complainant further signed a permanent contract of employment on the 3rd April 2014. This provided that she could be assigned to work over seven days and her start and finish times will vary according to business needs. There was annual winter lay-off and the complainant returned to work when she was assigned hours by the respondent. This was dependant on business needs and the weather.

The well-established test in assessing a dismissal on grounds of capacity was set out in Bolger v Showerings (Ireland) Ltd [1990] ELR 184. This stated that the onus is on the employer to show:

“1. That it was the incapacity that was the reason for the dismissal

2.The reason was substantial

3.The employee received fair notice that the question of his dismissal for incapacity was being considered; and

4.The employee was afforded an opportunity of being heard.”

Applying this to the facts in this case, the respondent’s reason for dismissing the complainant is clear. It dismissed the complainant because she was not capable of doing all the roles associated with the horticultural worker position. This is discussed at the meetings with HR and set out in detail in the letter of dismissal of the 20th July 2016.

This incapacity covered many functions associated with the position and lasted for some years; it was, therefore, substantial. The respondent obtained medical advice and acted in accordance with this advice. It engaged with the complainant whether she could do the full horticultural worker role. The complainant asked to continue with the previously granted reasonable accommodation regarding reduced tasks. While the complainant did not agree with the stance adopted by the respondent, she was given fair notice that dismissal was being considered and given the opportunity to be heard.

It follows from the above that the respondent has met the test for a capacity dismissal set out in Bolger v Showerings (Ireland) Ltd, thereby dislodging the presumption that the dismissal was unfair.

Section 6(2)(c) of the Unfair Dismissals Act provides that a dismissal wholly or mainly resulting from civil proceedings taken by the employee against the employer is deemed unfair. The complainant took personal injury proceedings against the respondent arising from the injury to her wrist. As set out by the respondent, the insurer took carriage of the proceedings and they settled in April 2016.

By letter of the 26th April 2016, the respondent delayed the complainant’s return to the 6th June 2016, citing the delay in raspberry season. The complainant replied on the 11th May 2016, asking that she return earlier as she had originally been scheduled to return on the 2nd May 2016. The first occupational health assessment took place on the 27th May 2016. The settlement cheque was remitted on the 30th May 2016.

While there is a temporal overlap between of settlement of the personal injury proceedings and the issues arising from the complainant’s return to work, I find that this was coincidence. The personal injury proceedings were longstanding and now dealt with by the insurer. There is no reference to the proceedings in any of the correspondence exchanged by the parties. This was all about what tasks the complainant could do and how she could be accommodated. None of the respondent employees were involved in the proceedings. It follows that the dismissal was not related to the personal injury proceedings taken by the complainant against the respondent.

CA-00006185-002

This is a complaint pursuant to the Redundancy Payments Act. The complainant was one of many horticultural workers employed by the respondent. She was initially provided with reasonable accommodation and in 2016, the respondent required that she perform all the duties of a horticultural worker. She could not do so and was dismissed on grounds of capacity.

It is well-established that impersonality and qualitative change are required for there to be a redundancy situation. The circumstances should not be directly related to the employee but to how the respondent intends to carry on its business or any diminution in the business.

There is no suggestion of any change or diminution in this case. The complainant was dismissed because she was unable to do all the tasks associated with horticultural worker. The respondent continued to manage its business and employ other horticultural workers. There is clearly no redundancy situation arising in these circumstances. The complaint is, therefore, not well-founded.

CA-00005002-001

I find that the complainant has established a prima facie case of discrimination, which the respondent has not rebutted. I order that the respondent pay to the complainant redress of €12,000 in compensation for the breach of the Employment Equality Acts. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

CA-00006185-001

For the reasons set out above, the claim pursuant to the Unfair Dismissals Act is not well-founded and is, therefore, dismissed.

CA-00006185-002

The complaint pursuant to the Redundancy Payments Act is not well-founded.

Employment Equality Act / section 101(4A)

Disability / section 16(3) / reasonable accommodation / disproportionate burden

Unfair Dismissals Act / incapacity

Redundancy Payments Act