Complainant

Respondent

Anonymised Parties

A Solicitor

A Legal Advice Body

Representatives

Áine Curran   O'Mara Geraghty McCourt Solicitors

Caitlín Love    Holmes O'Malley Sexton

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-00028130-001

01/05/2019

The Complainant commenced employment as a solicitor with the Respondent in December 2012. Her employment ended in December 2018. Her gross monthly salary was €4,598 and she worked 36.2 hours per week. The Complainant lodged a complaint with the WRC on 1st May 2019, under the Employment Equality Act, 1998. Due to the sensitive nature of the issues in this complaint I have decided to exercise my discretion to anonymise the parties in the published Decision.

The Complainant provided a detailed written submission.

The Complainant submitted that she was employed by the Respondent between 2002 and 2004 as a Law Clerk. She subsequently qualified as a solicitor and she was employed in that capacity by the Respondent from December 2012 onwards. She was made permanent in May 2017. Throughout her employment with the Respondent, the Complainant had worked at several different centres, never encountering any difficulties.   In August 2017 the Complainant commenced working from the X centre.

After she moved to the X centre the Complainant encountered serious difficulties in relation to the workload she was expected to handle. When a colleague, Ms A, went on maternity leave it was recognised that the volume of work was such that a locum solicitor was needed. However, when Ms A took extended maternity leave, the Respondent did not take any measures to cover her absence from the Centre.

The Complainant raised the difficulties she was having both verbally and in writing with her line manager and the Regional Manager, however, no measures were put in place to deal with the situation. The Complainant was told that in addition to her own workload she would have to cover that of Ms A, until she returned from maternity leave.

Through the autumn and winter of 2017 and the spring of 2018, the Complainant had taken on a considerable number of new clients and was being put under pressure by her line manager to take on even more.   The Complainant expressed her concern that in taking on too many first consultations, the progression of existing files was being compromised.   The Complainant did her best to deal with the workload, working evenings and weekends, but an enormous backlog remained.

The stress and strain of the workload began to take a physical toll on the Complainant’s health.

The Complainant sought a move to another Centre, but she was refused on the grounds that she was still on probation. The Complainant submits that other colleagues who were on probation had been accommodated with transfers.

The Complainant submits that during this period she alerted her line manager that she was working extremely hard and was taking on new clients every month. On 5th February 2018, the Complainant sent an email to her line manager which included the following:

“The amount of new clients I have had to take in the last few months have been overwhelming and, as previously advised, is pushing back my work pace on existing case files with the potential risk of exposure to complaints from clients whose matters I am unable to attend to within acceptable time limits due to increasing workload. I will appreciate if you can look into the above as a matter of urgency.”

Although the Respondent accepted the situation was difficult, the Complainant submits that no meaningful measures were put in place to alleviate the situation.

On 5th March 2018, the Complainant was certified as unfit to work until 19th March. The Complainant’s solicitor wrote by letter dated 8th March 2018, highlighting the issues of concern and informing them that the Complainant was suffering from burn out, exhaustion, anxiety and panic attacks, gastrointestinal problems and depression. The letter asked for the situation to be addressed so that the Complainant could return to work in a safe environment. In the meantime, the Complainant was given priority admission to mental health service provider, where she attended for counselling for the next six months. She was also taking medicine for depression

The Respondent’s solicitor replied by letter dated 5th April 2018, disputing the level of workload. The letter did not mention the health issues raised nor did it offer any solutions to the issues raised. The Complainant’s solicitor wrote again by letter dated 19th April 2018, expressing surprise that, notwithstanding the Respondent was on notice of the damage being caused to the Complainant’s health they had offered no solution. The letter also asked that an independent party carry out a review of the workload. No response was received. The Complainant’s solicitor wrote again on 3rd May 2018, but no response was received. The Complainant’s solicitor wrote again on 21st May 2018. A response was received on 31st May 2018, in which the suggestion of an independent review was refused. The Respondent wrote that it would be appropriate for the Complainant to attend the Chief Medical Officer (CMO), for assessment and to establish whether there were any adjustments need to the Complainant’s workload. The Complainant’s solicitor confirmed that the Complainant would be agreeable to that proposal and looked forward to hearing from them with a proposed appointment. No appointment was made and neither the Complainant or her solicitor were informed of any correspondence with the CMO.

The Complainant submits that she continued to struggle with her health and her workload throughout this time. The Complainant was certified as unfit to work from 24th July 2018 until 31st July 2018. The Complainant was further certified unfit to work between 31st July 2018 and 27th August 2018, due to depression. The certificates were sent directly to her manager, this submits the Complainant, means the Respondent was fully aware that the Complainant was suffering from depression.

The Complainant returned to work, but the workload continued to impact on her disability. The Complainant met with her line manager and raised issues regarding her caseload and lack of support. However, the Complainant’s line manager stated that the problem was being caused by the Complainant’s lack of time management skills, not her workload.   The line manager stated that Complainant’s colleagues were working very hard to cover the Complainant’s work.

On 19th October 2018, the Complainant contacted the Respondent’s HR Section and told the HR Manager that she could not continue the way things were. The Complainant told her, that she was going to resign. The HR Manager asked the Complainant to wait and she would see what she could do about the situation. The Complainant was about to go on annual leave, so she gave the HR Manager her personal mobile phone number. The HR Manager sked the Complainant to wait until the following week and she would call her. The Complainant never received a call from the HR Manager and handed in her resignation on 2nd November 2018, when her annual leave ended.

The Complainant submits that in this case, the Respondent failed to provide Reasonable Accommodation as required. Citing the case of Humphreys v Westwood Fitness Club [2004] ELR 296, the Complainant submits that an employer is required to fully and properly assess all the available medical evidence and, where necessary, to obtain further medical advice where available evidence is inconclusive. The Complainant submits that failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Furthermore, there is a requirement for medical assessment prior to establishing measures of reasonable accommodation. In this case there was, according to the Complainant, an absolute failure on the part of the employer to assess the Complainant notwithstanding their knowledge that she was suffering from depression.

The Complainant submits, that she sought a transfer to a different centre, but this was refused on the grounds that she was still on probation. However, the Complainant is aware of several other employees who applied for and were successfully transferred during their probationary period. However, it was emphasised that the reasonable accommodation sought by the Complainant was more to do with the level of work not a transfer.

In direct evidence at the hearing the Complainant re-iterated the difficulties she had experienced at work and her “overwhelming” workload. She stated that each time she returned to work her workload increased. Despite utilising the services of a solicitor, the Complainant felt abandoned, that no one was listening to her.

Regarding the form required of the Code, (Code of Practice for the Employment of People with a Disability in the Irish Civil Service) the Complainant stated that no one had ever told her about the form.

The Complainant also stated that she believed her line manager was aware that she was suffering from depression and that she had sent in scans of her certificates directly to her.

The Complainant also stated that in October, she told the HR Manager that she was suffering from depression. However, despite this she never heard back from the HR Manager and she resigned her position on 2nd November 2018, as nothing was forthcoming. The Complainant stated that she had discussed the fact that she was undergoing counselling with her line manager.

The Complainant did agree that she had never raised a formal grievance under the Dignity at Work Policy. She also agreed that she had not used the words “reasonable accommodation” when she was discussing her difficulties with her line manager.

In response to questions the Complainant agreed that as a solicitor she was familiar with employment law, disability and reasonable accommodation, but that she was not an expert in these areas. She also stated that she had made her disability know to the Respondent herself and through her solicitor.

In conclusion, the Complainant submits that the Respondent failed completely to assess the Complainant medically, notwithstanding their knowledge of her disability and failed to provide reasonable accommodation.

The Respondent provided a detailed written decision.

The Respondent emphatically rejects the allegations made by the Complainant.

Regarding the claim that the Complainant had a disability, the Respondent acknowledges that the Complainant furnished sick leave certificates which were stress related and that the Complainant’s solicitor engaged in correspondence with the Respondent between March and June 2018 regarding health issues which included stress, this the Respondent submits,   does not automatically mean the Complainant was disabled for the purposes of the Act nor does the Respondent   accept that the Complainant has established that any disability arose or was reasonably foreseeable in the circumstances. It is and was the Respondent’s view that while the Complainant may well have been suffering from transient short-term occupational stress, she did not have a disability within the meaning of the Acts.

The Respondent submits that the Complainant did not at any stage before the current WRC complaint confirm or advise the Respondent that she had a “disability” which required reasonable accommodation. The Respondent puts forward that it was the responsibility of the Complainant to raise the issue of a disability as envisaged by the Code of Practice for the Employment of People with a Disability in the Irish Civil Service (the Code).  

Furthermore, the Respondent submits, that upon engagement by the Respondent with the Civil Service Occupational Health Department (CSOHD), in light of the issues raised by the Complainant, the CSOHD indicated that they did not consider that an appointment was necessary at that stage and recommended that the Complainant meet with the management and or Human Resources to assess what the work was in in the first instance.

It is the Respondents position that it was not made aware that it could have reasonably foreseen or expected that the Complainant had a disability.

Notwithstanding the Respondent’s position on the matter of a disability, the Respondent denies the Complainant was discriminated against and/or victimised and asserts the Complainant has not discharged the prima facia burden of proof required under the Acts.

Even if the WRC accepts that the Complainant had a disability, the Respondent absolutely rejects the suggestion that the Complainant was treated less favourably than any actual or hypothetical comparator; the Complainant enjoyed the same contractual terms and conditions of employment as applied to all other Grade 3 Solicitors working for the Respondent.

The Respondent also denies that the Complainant was victimised; none of the reactive events set out in Section 74(2)(a)-(g) of the Acts occurred in this instance and therefore it is not possible for the Complainant to sustain a claim of victimisation.

Without prejudice to the previous contentions of the Respondent, the Respondent does not accept, that it did not put appropriate measures in place to address the complaints made by the Complainant about her workload.   Rather, the Respondent submits, that it took reasonable and proportionate measures to facilitate the Complainant’s concerns.

Regarding workload, the Respondent has developed a standard measure of assessing work output that solicitors can realistically be expected to achieve during their employment. Based on these measures, the work output asked of and delivered by the Complainant was always below what would be considered as reasonable and sustainable for solicitors at the same level across the Respondent’s cohort of solicitors. The Complainant was explicitly and formally advised that she was not expected to work additional hours on a regular basis and she was not expected to deliver anything in excess of what applied across the organisation generally.

The Respondent submitted that the Complainant had resigned in 2017, to take up a role elsewhere. However, a short time later she contacted the Respondent’s HR section and advised that she wished to retract her resignation. The Complainant was advised shortly afterwards that her request to withdraw her resignation had been accepted. In an email to the Complainant from her Director regarding same, he wrote, that this was “Good news”, which according to the Respondent makes it clear that management had no negative intentions towards the Complainant and had no wish or intention to discriminate against her or push her towards resignation.

In July 2018, the Respondent referred the Complainant’s case to the CSOHD.   On 17th July 2018, the CSOHD responded that they did not consider an appointment necessary at that point and recommended that the Complainant meet with management/HR to assess what the work issues were. The Complainant sought a meeting with her line manager which took place on 17th September 2018. The Respondent submits that it would have been happy to revert to the CSOHD to arrange an appointment had a further request been made by the Complainant after her meeting with her line manager, however, the opportunity to do so did not arise and the Complainant subsequently resigned of her own accord in early December 2018.

While the Respondent accepts that there were periods during the Complainant’s employment when a solicitor’s post was vacant in her centre, the Respondent did its utmost to address this matter by hiring an additional grade 3 solicitor. According to the Respondent the issues experienced by the Complainant were only temporary. In any event the Respondent does not accept that the staffing issues impacted on the Complainant to any significant extent and it was the Complainant’s line manager who bore most of the extra burden.

The Respondent submits that the Complainant at no stage advised the Respondent that she felt she had a disability which required reasonable accommodation, nor could the Respondent have been reasonably foreseen or expected that the Complainant required reasonable accommodation.

The Respondent does not accept the Complainant’s allegation that she was “dismissed” and specifically notes the fact that the Complainant did not sufficiently or indeed engage with the internal grievance processes which were in place prior to her resignation.   Although it is clear the Complainant verbalised subjective issues regarding her workload and indicated she wished to invoke the Grievance Process regarding her Probation Report and other issues, management received no further communication from her in this regard and she did not take any of the steps available to her under the Grievance Procedure through the required stages/procedure such that the Board would have been on notice of the fact that the Complainant was likely to terminate her employment contract. It is not accepted that the Complainant had no option but to resign in circumstances where she had not exhausted the internal grievance procedure (stage I) or the appeals procedure (stage II).

The Respondent also refutes, in the strongest terms, an allegation made in the complaint form against the Complainant’s line manager, asserting that the line manager had “instigated staff to write inappropriate and spurious complaints to the Regional Manager against [the Complainant]”.

The Complainant’s line manager gave direct evidence at the hearing.   She stated that the workload for the Complainant was standard but there was a significant increase in January 2018. The Complainant told the witness that she could not cope with her workload.

The witness stated that it was only in March 2019, when a WRC Complaint from the Complainant was brought to her attention, did she realise the Complainant had been suffering from depression. Although she agreed the Complainant had sent her an email(s) she did not send her medical certificates, these went to a central HR section. The witness stated that the Complainant did not tell her the details (of her absence) and that she did not ask for the details.

The Complainant’s line manager also stated that she did not see the sickness certificates or discuss the Complainant’s illness with her; any meetings she had with the Complainant were to do with workload. She was unaware of any diagnosis of depression or that the Complainant had undergone or was undergoing a course of counselling.

In response to questions the witness accepted that she may have received an email from the Complainant’s son with a sickness certificate attached indicating depression as the cause of the absence.

The Respondent’s Director of HR also gave direct evidence. He stated that he Code is readily available to all employees and that everyone is aware of it. He was not aware of any requests from the Complainant for reasonable accommodation. He also stated that managers do not check medical certificates on the central HR system as these are deemed to be confidential. In response to questioning the HR Director stated that he was unaware as to whether the Complainant had received any training on the Code. He also stated that, in his view, a letter from a solicitor does not constitute medical information.

In concluding, the Respondent submits that there is no basis for the Complainant’s allegation that she was disabled or discriminated against in any way by virtue thereof and she has not established a prima facie case such as to transfer the burden of proof to the Respondent. Nor was she dismissed from her role, whether constructively or not.   Whilst the Respondent accepts that the Complainant had raised concerns regarding her case load, at no time was the Respondent put on notice of or could have been reasonably expected to foresee that the Complainant was suffering from a “disability” as defined under the Acts such that required reasonable accommodation.

In this regard the respondent submits that the legal principles laid down in the case of Berber V Dunnes Stores [2009] E.L.R. 61 must be considered by the WRC.

In reaching my conclusions in this case I have considered all the submissions, both oral and written, made to me by the parties.

The Complainant’s complaint is grounded on the assertion that she was discriminated against in various ways by the Respondent by virtue of her alleged disability. The Respondent’s defence in the first instance is that it was not on notice of nor could it have been expected to reasonably foresee that the Complainant had a disability.

To establish a prima facie case of discrimination, the Complainant must firstly have satisfied the Adjudication Officer that she had a disability at a time material to her claim and secondly, must prove that the Respondent was on notice that she had a disability. The issues arising in this case are as follows:

Was the Complainant a person with a disability a person with a disability at the time material to this claim? If that question is answered in the affirmative-

Was the Respondent on notice of the disability? And if so;

Was the Complainant discriminated on grounds of her disability?

Section 2 of the Act defines the term “Disability” as follows:

disability” means—

( a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

( b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

( c) the malfunction, malformation or disfigurement of a part of a person’s body,

( d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

( e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

As Adjudicator I must first consider the allocation of the burden of proof as between the parties. Where a prima facie case is made out the onus shifts to the Respondent to prove the absence of discrimination. On the established test, it is for the Complainant in the first instance to establish the primary facts upon which the complaint is based. If the primary facts are proved, it is then a matter for the Adjudicator to determine if they are of sufficient significance to raise an inference of discrimination on the grounds relied upon. If having thus established a prima facie case that the disability existed, the burden of proof rests with the Respondent to demonstrate that the alleged discrimination was not on the grounds of disability.

In this case the Respondent’s position is that it had never been made aware that the Complainant had a disability before she left their employment.

I will now examine the evidence presented to support the claim that the Complainant suffered from “depression” and “was the Complainant a person with a disability” within the meaning of the Act.

Although the Complainant’s Solicitor wrote to the Respondent in March 2018 outlining concerns and included the word depression in a list of ailments from which the Complainant was suffering due to her workload, this does not constitute medical opinion. A solicitor cannot give a medical opinion. Thereafter, medical certificates were furnished giving work-related stress as the reason for the Complainant’s absences.   Only certificates for one absence were received during the period in question which stated depression as the reason for the absence. The Respondent was never made aware of the fact that the Complainant was attending counselling.

Of note is that no direct medical evidence or certification was produced at the Hearings to support the contention that the Complainant had been suffering from a disability at a time material to her claim. No medical doctors or Consultants were presented at the hearing to support the Complainant’s position that she had been suffering from depression.   No documentation from a Medical Consultant was adduced at the hearing to support the contention that the Complainant had been suffering from a disability.

In this case both the documents referred to above and the extent of the Respondent’s knowledge of that disability are primary facts upon which the Complainant relies in advancing her claim of disability, the Respondent’s knowledge of that disability and discrimination. The Respondent denies any actual or constructive knowledge of the disability relied upon. In these circumstances, it is for the Complainant to provide clear evidence showing she was a person with a disability at the time material to her claim.   She must also provide some evidence to establish, in a prima facie way at least, that the Respondent knew or ought to have known that she was such a person.

I find that no satisfactory evidence was provided by the Complainant that she provided the Respondent with a medical opinion stating that she suffered from depression.

I will now deal with the question as to whether the Respondent should have been able to deduce from the medical information available to it that the Complainant had a disability.

Up to 31st July 2018, any medical certificates provided by the Complainant indicated work-related stress as the reason for her absences. Medical certificates for the periods 31st July 2018 to 13th August 2018 and 13th August 2018 to 27th August 2018, both specify that the Complainant was unable to attend work due to depression. In her evidence the Complainant’s line manager was unsure if she had seen copies of these certificates at the time but copies of emails indicate that they were sent to her.   The line manager also gave evidence that the Complainant had never mentioned to her that she suffered from depression, had a disability or needed reasonable accommodation. She also stated that she was not aware that the complainant had a disability.

Although the Complainant’s evidence did conflict with that of her line manager regarding a discussion on what her issues were (the Complainant stated that she brought up the matter of depression with her line manager), I prefer the evidence of the line manager in this matter. The Complainant did agree, when questioned, that she had never used the term, “reasonable accommodation”, when in discussing the situation with her line manager.

What is I believe a crucial point in this case is that the Complainant returned to work after her absence in August but did not utilise the Code or initiate a formal grievance. If she had a disability and if she required some accommodation to be made, she should have raised the matter then; she should have made the situation absolutely clear to her manager and/or utilised the Code and/or initiated a grievance; she did none of these things.   As a solicitor she should have known this was the correct course of action. To put it simply, she should have made it known that she had a disability and opened a dialogue on reasonable accommodation.

Instead, she went on annual leave in mid-October and never returned to work, resigning on 2nd November 2018. Never throughout this whole episode did the Complainant raise a formal grievance or fill in a form to put her employer on notice that had a disability.

In EDA 1927, the Labour Court makes it clear that:

"if an employer is to be expected to offer a reasonable accommodation to an employee, they can only be expected to do so in circumstances where either the disability concerned is self-evident or, alternatively, they are advised of its existence. It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Employment Equality Acts to assist an employee"

In this case it was neither self-evident nor was the Respondent advised that the Complainant had a disability. I find it unreasonable and unrealistic to expect the Respondent in this case to engage in guesswork about whether the medical complaints brought to their attention required further enquiry by them to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Acts to assist an employee.

Furthermore, I do not accept that the Respondent had knowledge to indicate that the Complainant was suffering an illness that amounted to a disability at the material or reasonable time.

In these circumstances, by application of the established test, I find the onus of proving the absence of discrimination does not shift to the Respondent. A prima facie case has not been established by the Complainant.

I find that the Complainant has not provided enough evidence to establish a prima facie case to uphold the allegations selected in her complaint form. The complaints listed on the complaint form are set out below and the required decision is given on each:

Discrimination on the Ground of Disability– no prima facie case established.

That the Respondent treated the Complainant unlawfully by discriminating against her in victimising her – no prima facie case established.

That the Respondent treated the Complainant unlawfully by discriminating against her in failing to give her reasonable accommodation for her disability – no prima facie case established.

That the Respondent treated the Complainant unlawfully by discriminating against her in Conditions of employment – no prima facie case established.

That the Respondent treated the Complainant unlawfully by discriminating against her in Dismissing her for discriminatory reasons– no prima facie case established.

That the Respondent treated the Complainant unlawfully by discriminating against her in Dismissing her because she opposed discrimination– no prima facie case established.

The complaint is not well founded.

Disability, on notice, discrimination.