Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031105-001

01/08/2019

Complaint seeking adjudication by the Workplace* Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00031105-002

01/08/2019

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

CA-00031105-003

01/08/2019

The Complainant is employed as a security guard with the respondent since 03/04/2014. The Complainant’s contract of employment does not comply with Section 3 of the Terms of Employment (Information) Act 1994. Following an accident at work on 4th April 2019 the Complainant was diagnosed with epilepsy. Medical advice from an Occupational Health Physician and the Complainant’s Specialist Registrar confirmed that he was only fit to undertake modified duties, and not to work alone or perform any safety critical work. The Respondent did not have suitable work for him for a number of months.

CA00031106-01 and CA00031106-02

The Complainant received a copy of his terms and conditions of employment dated 03/06/2014.   These were updated on 05/03/2015.   It was submitted on behalf of the claimant that these do not comply with Section 3 of the Terms of Employment (Information) Act 1994 as they do not contain:

·         Particulars in accordance with Section 3(1)(g). This section stipulates that an employee may, under Section 23 of the National Minimum Wage Act 2000, request from their employer a written statement of the employees’ average hourly rate of pay for any reference period as provided for in that section.

·         The Complainant did not receive a Gender Equality clause as required by Section 21 of the Employment Equality Act 1998.

·         The Complainant’s contract of employment provides for a leave year from 1 January to 31 December and not from 1 April to 1 March as per Organisation of Working time Act

·         The Complainant’s contract of employment does not advise the employee of his rights under Section 11,12 and 13 of the Organisation of Working Time Act for rest breaks.

·         The written terms and conditions do not contain particulars in accordance with Section 3(1)(c) which stipulated where the place of work is or where there is no fixed or main place of work, a statement to the effect that the employee is required or permitted to work at various places.

·         The written terms and conditions of employment does not contain particulars in accordance with Section 3(1)(f) which stipulates that a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of that agreement or order. The Complainant’s contract of employment sets out that an ERO or Registered Employment Agreement does apply but does not state where the Complainant can obtain a copy.

·         The written terms and conditions of employment do not contain particulars in accordance with Section 3(1)(I) which stipulates the period of notice the employee is entitled to receive.

CA00031106-01 and CA-00031106-02

The Complainant was issued with a standard contract of employment which was agreed with the Complainant’s trade union as part of an overall Company/Union agreement. No grievances or issued were raised with the Respondent in relation to this contract. The Respondent is satisfied that all its working practices are in line with the ERO for the security industry, Company/Trade Union Agreement and legislative requirements. A copy of the agreement was provided at the hearing. The Respondent is happy to clarify any issues that arise for the Complainant in relation to his terms and conditions.

CA-00031106-01 and CA-00031106-02

The Complainant has raised a number of technical breaches of the Terms of Employment Act and the Organisation of Working Time Act. It was submitted on behalf of the Complainant that it was not necessary for the Complainant to show that he suffered a detriment as a consequence of the failure to comply with the various terms of the Acts. In that context it was submitted that the case of Beechfield Private Homecare Limited and Megan Kelly Hayes, TED1919 was relevant.   In this case the Labour Court awarded compensation for the technical breaches. The Complainant also relies on the case of Felix Guerrero and Merchants Arch Company Limited (DWT188) whereby the Labour Court pointed out that the “requirements set out in Section 3 of the Act are not complex matters. A simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which s/he is employed.”

In that case the Court also found no merit in the argument that the breaches were of a technical nature only and that the Complainant suffered no consequence.

The Respondent in the instant case relies on the Management/Union Agreement. This agreement was signed on 22/10/2004 and I note the provision to review its operation. Clearly this has not happened. In any event, the statute in itself imposes an obligation on the employer and confers a corresponding right on a worker to have the basic terms of employment set out in writing in order to comply with the provisions of Section 3 of the Act. It is clear that the Respondent did not do so in this case. I find that the Respondent has infringed Section 3 of the Act in a number of respects. I also find that the Respondent failed to acknowledge their failures in this regard and provide an undertaking to rectify them.

CA-00031105-03

The Complainant had an accident at work on 04/04/2019 whereby he fell after a seizure. He was hospitalized for about one week. He was diagnosed as having epilepsy. He remained off work and was examined by the Respondents Occupational Health Physician, Dr A. She advised that the Complainant was fit to resume duty doing modified duties. Dr A was clear that there were “significant implications” for the Complainant’s fitness for work. Dr A’s report confirmed that he cannot be deemed fit for lone working or other safety critical work. Dr A also noted that if modified duties are not available then the Claimant “will remain on sick leave for up to a year”. A report from the Neurology Specialist Register, Dr B, agreed with the suggestions of the Occupational Health Physician and in particular noted that “he should not be rostered to do a shift alone and our preference would be that he would be rostered with a colleague.”  

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2 (1) of the Acts is 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 malfunction,

or

(e)    a condition, illness or disease which effects 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.”

In the instant case it is not disputed that the Complainant has been diagnosed with a medical condition. It was not in dispute that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Act. It is clear that the Complainant’s medical condition will have a significant impact on his ability to fully participate in the role that he has with the Respondent. In the circumstances I find that the Complainant’s medical condition clearly constitutes a disability within the meaning of Section 2(1)(c) of the Acts.

Accordingly, the issue for decision in this case is whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16 (3) of the Acts.

Extensive evidence both oral and written was presented by both parties at the hearing in respect of their respective cases. In reaching my decision I have taken account of all the evidence and submissions made.

Section 16(3) of the Employment Equality Act provides:

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

(b) the employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability –

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) undergo training,

Unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, of-

(i) the financial and other costs entailed,

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

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

Subsection (4) provides:

“(4) In subsection (3)-

‘appropriate measures’ in relation to a person with a disability-

(a)    means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b)    without prejudice to the generality of paragraph (a) includes the adaption of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration, but

(c)     does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance employment.   Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties.

The Complainant contends that the Respondent has failed to provide him with reasonable accommodation in accordance with its obligations under Section 16 of the Acts. More specifically the Complainant contends that the Respondent’s failure to provide him with a suitable role as outlined in the medical reports of Doctors A and B. The Respondent disputes this claim and contends that the Complainant is medically unfit to perform the duties of a security officer and specifically any role which involves lone working and safety critical work or tasks. The fact that the Complainant could not now drive was also relevant. The Respondent contends that they provide security services to client sites in a variety of settings and 95% of their roles are security officers. The Respondent contends that the security industry in which they operate does not have any role which does not have some element of safety critical work and lone working.

Having reviewed the submissions of the parties the following timeline is relevant:

The Complainant had a workplace accident on 04/04/2019. The assessment by the Occupational Health Physician took place on 29/05/2019. A report from Doctor B was issued on 27/07/2019. The Complainant attended welfare meetings with the Respondent’s representatives on 14/06/2019 and 04/09/2019. The Complainant was offered some shifts in September 2019, but these were not suitable due to their location and lone working position.   The Complainant commenced working suitable shifts from 09/10/2019.

The two medical reports are of fundamental significance in relation to my deliberations on the issue of the provision of reasonable accommodation to the Complainant in the context of the period in question relevant to this complaint. The first medical report is from Dr A, the Respondent’s Occupational Health Physician. This report is most clear – it outlines the duties usually performed by the Complainant and then states that he is unfit for full normal duties and cannot be deemed fit for lone working or safety critical tasks. This report does outline that the Complainant is “fit for administrative type duties such as CCTV monitoring or reception work.”

In the case of Nano Nagle School v Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of Section 16 of the Acts. In his judgement MacMenamin J held at paragraph 84 that “… S16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have assess to employment, to participate and advance in employment, and undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself.”

In this judgement MacMenamin J has also provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts. It was held at paragraph 105 of this judgement that:   “I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act.   But absence of consultation cannot, in itself, constitute discrimination under S. 8 of the Act.”  

After careful consideration of the evidence adduced in this present case, I am satisfied that the Respondent dealt with the Complainant’s disability in terms of taking account of the totality of the medical reports and recommendations and it is clear that he was not able to take on the main duties and tasks associated with his role. I am satisfied that the Respondent engaged with the Complainant in relation to available roles but the constraints in terms of travel and lone working rendered all of these as unsuitable.

It is clear from the Supreme Court judgement in the Nano Nagle case that the duty to provide reasonable accommodation within the meaning of Section 16 of the Acts cannot be infinite or remove all the duties which a disabled person is unable to perform as that would almost inevitably become a disproportionate burden. In that context MacMenamin J held at paragraph 89 that: “This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden.”

In considering this matter, I note that the Respondent is a large employer and that it provides security to approximately 90 sites in the greater Dublin area. The Respondent provides security officers based on the contractual requirements agreed with clients. It was submitted that the Respondent cannot request any client to devise a role which would assist the Respondent in terms of providing a new role for the Complainant.  

The Respondent outlined that its scheduling team were made aware of the requirements in relation to the Complainant’s disability and should suitable shifts arise they should contact him to undertake such shifts. I found the Respondent’s evidence on this matter to be compelling, and on balance I accept the Respondent’s evidence that it was not possible to accommodate the Complainant in a suitable and acceptable role which would satisfy the recommendations outlined by Dr A and Dr B. I also note that when suitable shifts were required by a client site the Respondent engaged with the Complainant at that time and he undertook those shifts.

In the circumstances outlined I find that the nature of the role that would be required to accommodate the Complainant in order to meet the recommendations of the Occupational Health Physician and endorsed by the Neurological Registrar would involve the Respondent engaging with one of their clients in order to create a new or different job for him. In applying the principles enunciated by the Supreme Court in the Nano Nagle case I am satisfied that the Respondent’s obligation to provide reasonable accommodation within the restrictions imposed by the medical recommendations does not extend so far as to compel it to create an entirely different job to facilitate the Complainant.

Having regard to the foregoing, I am satisfied that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of Section 16(3) of the Acts.   Accordingly, I find that the Complainant has failed to raise a prima facia case of discrimination on the grounds of disability contrary to the Acts and that his complaint fails.

CA-00031105-001 and CA-00031105-02

I find that the Respondent has infringed Section 3 of the Terms of Employment (Information) Act 1994 in a number of respects and the complaint is well founded. I order the Respondent to pay the Complainant a sum of €1,160. I also order the Respondent to give to the Complainant the following particulars:

·         Particulars in accordance with Section 3(1)(g) of the Terms of Employment (Information) Act 1994 in relation to the rate and method of calculation of the Complainant’s remuneration.

·         A written statement of the Complainant’s average hourly rate of pay for any reference period as provided for under Section 23 of the National Minimum Wage Act 2000.

·         Provide the Complainant with a Gender Equality clause as required by Section 21 of the Employment Equality Act 1998.

·         Amend the Complainant’s contract of employment to provides for a leave year 1 April to 1 March as per Organisation of Working time Act

·         Provide the Complainant with a statement of his rights under Section 11,12 and 13 of the Organisation of Working Time Act for rest breaks.

·         In accordance with Section 3(1)(c) of the Terms of Employment (Information) Act a statement to confirm where the Complainant’s place of work is or the Complainant there is no fixed or main place of work, a statement to the effect that is required or permitted to work at various places.

·         In accordance with Section 3(1)(f) of the Terms of Employment (Information) Act to provide the Complainant with details of any registered employment agreement or employment regulation order which applies to the Complainant and confirmation of where the Complainant may obtain a copy of that agreement or order. In accordance with Section 3(1)(l) of the Terms of Employment (Information) Act to provide the Complainant particulars which stipulates the period of notice the Complainant is entitled to receive or if this cannot be indicated the method for determining such notice period.

CA-00031105-003

I find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of Section 16(3) of the Acts. Therefore, I find that the Complainant has failed to raise a prima facia case of discrimination on the grounds of disability contrary to the Acts and that his complaint fails.

Disability,   reasonable accommodation,   discrimination.