ADJ-00016629

Complainant

Respondent

Anonymised Parties

A Customer Care Advisor

An Insurance Company

Representatives

Mr. Dan Walshe B.L., instructed by Sean Ormonde & Co. Solicitors

IBEC

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-00021619-001

06/09/2018

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

CA-00021619-002

06/09/2018

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

CA-00021688-001

10/09/2018

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

CA-00021688-002

10/09/2018

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

CA-00021689-001

10/09/2018

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

CA-00021689-002

10/09/2018

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

CA-00021699-001

10/09/2018

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

CA-00021699-002

10/09/2018

The Complainant commenced employment as a customer care sales advisor with the Respondent on 1 September 2014. She said that she started to suffer from a hoarse throat in June 2017 and was advised that she should seek medical advice from her employer. She said that she was sent home from work on various occasions when her voice failed her but was able to return to work the following morning again. The Complainant said that on 3 August 2017 she attended an appointment with Dr. A, Ear, nose and throat consultant. He advised her to take 6 weeks off to rest her voice, he prescribed her medication and he suggested in a letter that she be “transferred to duties where she is not overusing her voice”. The Complainant brought this letter into her employer and on 14 August her voice went again, and she was sent home from work early again. She was sent to Provider Support to deal with emails from 16 August. Her voice returned on 18 August. She said that she was told to return to the Call Centre on 29 August and an appointment was arranged with Dr. A for 31 August by her employer. The Complainant said that she attended the appointment as was told. However, Dr. A was “irate” as she was not due to return for 6 weeks from the last appointment and that the rest and medication were not given time to assist. Dr. A referred the Complainant to speech and language therapy. The Complainant said that it was clear to her that the Respondent through its action of making her return to her medical consultant was indicative of its reluctance to provide her with reasonable accommodation. The Complainant said she was sent to another section within the Respondent and carried out non-phone work and attended training in letter writing and webchat training. She said that she carried out some webchat work following the training. The Complainant that she would be returning to her phone work as of 9 October 2017 on a phased basis two hours per day increasing each day, so that it would be easier on her voice. She went to work on 9 October and completed her two hours. However, her voice went and did not return for four days. She was returned to letter administration and webchat work. The Complainant said that she attended Dr. A and following he wrote on 12 October 2017 to the Respondent advising that she was not improving, that the speech therapy had not worked, and she should be moved away from working on the phones. The Complainant said that she attended Dr. A on 19 October who told her that she was to do no more telephony work. He also wrote to the Respondent and said that her “recovery would be impaired by singing and would recommend that she curtail this activity forthwith”. The Complainant said that there was an exchange of correspondence between the Respondent’s doctor and the external medical specialist throughout the end of 2017. A meeting was held on 9 January 2018 with her and the Respondent, and the minutes were provided in evidence where the Respondent highlighted that it had been providing her with respite accommodation for a long period of time, she was unable to work on the phones, however, her contract of employment was “phone advisor”. The Respondent highlighted that it was in a position to offer more respite off phone work up to and concluding at the end of July 2018. It mentioned that it does not have a permanent work solution at that point in time. Dr. A wrote to the Respondent in January 2018, suggesting the problem had improved that she should experience a good relief, if she was able to rest her voice and “if at all possible, could she be moved to a point of employment which does not involve overuse of the voice”. The Contact Centre Manager Mr. B wrote to the Complainant on 23 January 2018 reemphasising what had been raised in the meeting. In particular she notes that again no other permanent position was offered. The Complainant said that around this time the Respondent advertised claims adjudication roles, where she held the required qualifications. She said that she was not offered any of these positions. On 16 April Dr. A wrote to Dr. C, the Complainant’s GP to say that the Complainant had not been working on the phones and had much improved and that he was arranging any new treatments. The Complainant said that she contacted the Respondent at this time and asked to be considered for other positions within the company. She highlighted that certain staff were undergoing training for other roles and she sought that also. The Complainant said that Respondent acknowledged her reply and said that they would be in contact. On 27 April 2018 the Company Doctor wrote to Ms. D, Occupational Health Nurse, stating that he had spoken to Dr. A who had suggested a trial return to the phones, limited hours per day and increasing. However, if the trial fails that she might not be fit to use the phones long term. The Complainant said she was invited to return to the phones by Mr. B and did so. However, on 17 May having spent four hours on the phone, her voice went during a call and she arranged an emergency appointment with Dr. A, who examined her and again advised her that voice rest would be useful. The Complainant said that on 18 May the Company Doctor and Ms. D told the Complainant that her problem was “purely psychological”. She said that she attended her own GP who disagreed with the Company’s medical assessment. The Complainant said she met with Ms. X, operation team leader, and Ms. Y, HR, and they presented her with a letter outlining what the Respondent needed to consider and gave her until the end of June. The letter set out a chronology of the events since the Complainant was deemed fit to return to work in the customer care sales advisor role and the subsequent loss of her speech again. The letter offered the Complainant a number of alternative options to assist her namely,

A) two months paid leave for June and July to facilitate her to look for alternative employment, and/or

B) a six-month career break to seek alternative employment or seek medical treatment that would alleviate the condition preventing the complainant from her telephony advisor role.

The letter advised her that should neither of the options be acceptable to her that it will be necessary to obtain further expert evidence. The Complainant said that it disputes the Respondent’s view that there were no other full-time non-telephony roles available at the time. She referred to a position, that she deems was suitable, advertised under “seeking an expression of interest” in and around that time, 23 June 2018. The Complainant said that she was called to a meeting with Ms. X and Ms. Y on 29 June 2018 and she was advised that since she had failed to accept the Respondent’s offer that her contract would be terminated on 27 July 2018. The Complainant said that the Respondent failed to obtain any further medical advice. The Complainant said that had the Respondent’s Company Doctor believed that the matter was “purely psychological”, the Respondent should have sought a medical opinion on this or sought to have instituted disciplinary proceedings. The Complainant said that on 20 July 2018 the Company wrote to Ms D, which stated that “her throat is normal there are no abnormalities on examination” … “[the Complainant] has an unexplained voice problem which manifests itself as hoarseness. Her vocal cords [are] normal. A voice coach [found no] problem. It is difficult to explain medically why [the Complainant] has this problem.”. The Complainant said that she was dismissed seven days later on the grounds of incapacity. Notwithstanding, the medical evidence that she was fit for work. The Complainant stated that she was therefore unfairly dismissed.

Legal submission – unfair dismissal

The Complainant said that she has the sufficient service to meet the requirements under the Unfair Dismissal Acts 1977 -2007 and refers to Section 6(4)(a) in relation to incapacity as a reasoned defence in such cases. The Complainant cites the authorities such as Reardon v St. Vincent’s Hospital UD74/79 where it was found that an employer can dismiss when there is no reasonable return to work date, and Bolger V Showering (Ireland) Limited [1990] ELR 184, which sets out the key criteria that an employer will have to demonstrate for them to ensure that a dismissal is fair. The Complainant said that should the Respondent wish to rely on the Complainant’s incapacity because her condition was “purely psychological” it would have needed to attain medical assessment on that and it did not.

Legal submission – Employment Equality:

The Complainant claims that the condition with her voice qualifies as a disability under the definition of a disability under the Act, in particular, Section 2 – interpretations under the heading “disability” – (a) the total or partial absence of a person’s bodily or mental functions. The Complainant said that the Respondent had knowledge of her disability and cites the main authorities in relation to establishing a prima facie case, where the burden of proof lies and how the employee is treated after they return to work after sickness, inter alia, Ntoko v Citibank [2004] ELR 116, Dublin Corporation v Gibney EE5/1986 and An Employee (Mr O) v An Employer (no.2) [2005] ELR 132. The Complainant submitted a lengthy legal submission bringing to the fore the main authorities with regard to the development of the jurisprudence around the area of reasonable accommodation, in particular, citing the most recent decision from the Supreme Court in Nano Nagle v Marie Daly [2018] IECA 11, and said that the Respondent did not follow the tests and simply repeatedly returned her to phone work despite clear opinion that her disability was a result of over use of her voice. It said that the Complainant continually made it clear that she was interested in alternative roles, but the Respondent failed to identify such non-telephony roles.

The Respondent said that the Complainant commenced employment with it on a fixed term contract on 13 August 2012 and was offered and accepted a permanent contract of employment on 1 September 2014. The Respondent was not aware of any voice difficulties experienced by the Complainant until 15 August 2017, when she provided Ms. D, occupational nurse, with a letter dated 8 August 2017, from Dr. A, Consultant that she had been troubled by hoarseness for about three months. No indications in that regard had been given by the Complainant to her Team Leader or Operations Team Leader until that time. The Respondent said that it immediately sought to implement the Consultant’s recommendation for temporary transfer. The Complainant at that juncture was placed in the provider support department of the Claims Department. It said that the letter from Dr. A requested that the Complainant be ‘transferred to duties where she is not overusing her voice. The Respondent said that it is not the case that she was advised to take 6 weeks off to rest her voice. Dr. A letter was presented to the Respondent’s Friday the 11 August and was addressed by Occupational Health on the following Tuesday 15 August, when she was sent home by Ms. D on that date, once she became aware of the concerns raised in the Consultant’s letter. The Complainant was paid six hours special leave for the day and returned to work the following day, and put into the Claims’ area, off the phone work, based on Dr. A’s communication. The Respondent said in the period between the Complainant’s visit with Dr. A and 15 August she did not raise any issues regarding her voice, which is somewhat surprising, given that she was apparently suffering with voice difficulties for three months prior to that date and neglected to either mention her visit to her ENT Consultant in early August, or the written recommendations she had received from her Consultant, until 15 August. The Respondent raised the point that the Complainant’s voice returned on 18 August. However, the Respondent was never made aware of this. On 25 August, the Complainant was referred by the Respondent to the Company Doctor and a handwritten note from him which said that the Complainant is ‘Not fit for phone use currently; needs urgent speech therapy and follow up post speech therapy’. The Respondent said that there is no dispute that the Complainant was not required to utilise her voice and it continued to source no-telephony work for her for a time. However, the Respondent disputes that the request to bring forward the second assessment by the Complainant’s ENT Consultant is indicative of the Complainant’s claim of a “reluctance to provide reasonable accommodation for the Complainant’s disability”. Similarly, it said that a Consultant would be ‘irate’ at an appointment having been brought forward is nonsensical, given that the arrangements for the earlier appointment were agreed between the Respondent and Dr. A’s office. The correspondence between the Respondent and Dr. A’s office clearly indicate agreement to bring the appointment forward. There is no indication of ‘reluctance’ to accommodate the Complainant’s difficulties. The Respondent noted an email from Dr. A’s office to the Respondent, advising that the Complainant ‘is very concerned about her voice getting better in order to be able to join her choir again...’. This email was sent by Ms. D following a conversation with the Complainant the previous day and demonstrates that the urgency of the second consultation with Dr. A was not only in the interests of the Respondent in light of the Complainant’s contractual position but in the personal interest of the Complainant herself. The outcome of Dr. A’s assessment on 31 August is set out in two letters dated 4 September 2017; the first in the form of a referral to speech and language therapy, indicating inter alia, that the Complainant had not responded to the proton pump inhibitors, that Dr. A was reluctant to perform surgery, that she should rest her voice as much as possible and she should have her voice assessed by speech and language therapy as soon as possible. The second letter from Dr. A to Dr. C, the Complainant’s GP, to appraise her of the Complainant’s condition by way of update. The Respondent was actively sourcing work during August and September, which would not require the Complainant to use her voice, in accordance with the medical advices received. In fact, another staff member being actually moved to facilitate this. The Respondent acknowledges that the Complainant attended a number of speech therapy sessions, commencing in September 2017. She commenced a phased return to telephone work on 9 October, having agreed to do so with Ms. D on 28 September. This arrangement was made with the Complainant’s input following a discussion with Ms. D. On her return to telephone work on 9 October, as agreed, the Complainant again suffered hoarseness. In the circumstances, the Respondent again arranged for redeployment to alternative work. Dr. A again assessed the Complainant on 12 October following which he wrote to her GP, recommending she rest her voice and review in three months. Ms. D met with the Complainant again on 19 October and a further appointment was arranged with the Company Doctor on 20 October. The Company Doctor’s report stated that the Complainant suffered hoarseness after two hours on the phone on 9 October; that her voice returned four days later; Dr. A’s advice regarding voice rest, further review in 3 months, and speech therapy had not been of benefit. The Company Doctor’s report concluded with confirmation of the Complainant’s fitness for work but not fit for phone duties. At the express request and expense of the Respondent, the Company Doctor wrote to Dr. E, Consultant Otolaryngologist, Head/Neck Surgeon on 7 November seeking an independent opinion regarding the Complainant’s fitness to work on phones in the Respondent. Dr. E’s response dated 15 November reiterates the requirement for avoidance of prolonged voice usage, with particular emphasis on the occupational health aspect, noting ‘From the point of view of occupational health I feel that any job which exacerbates prolonged voice usage should be avoided as this would make the polyp worse and prevent progress with speech therapy.’ The Company Doctor forwarded Dr. E’s report to Ms. D, on 17 November, and commented, in the cover email, that further to a conversation with Dr. E, noted his comment that he ‘feels that she is not fit long term to work as a telephonist’. Arrangements were then made through Ms. D for the Complainant to attend with the Company Doctor to discuss Dr. E’s report. During the weeks following the report, the Complainant continued to work in other areas of the Respondent company, specifically placed by the Respondent to avoid voice usage, while remaining in constant, regular contact with the Occupational Health Nurse in relation to her voice difficulties and other health issues. A meeting with HR was arranged with the Complainant on 9 January 2018, to discuss the respite arrangements in place given her voice difficulties and the medical recommendations received by the Respondent at that time. The matter had been discussed by the Respondent, who identified further ‘respite’ work for the Complainant up to the end of July 2018. The Complainant was assured that efforts were ongoing to identify a permanent position within the Respondent where the use of her voice would not be necessary, which was proving difficult. However, she was advised to apply for any other roles within the Respondent outside the contact centre. A number of other possible options were put to the Complainant at that time, as follows:

Option 1 Should the Complainant decide to seek alternative employment, the Respondent would provide one month’s paid leave, from 1st July 2018, in which to do so.

Option 2 offered to the Complainant was an opportunity to take a six-month career break, to allow her to source/secure further treatment regarding her condition. The Respondent said that the Claims Adjudicator positions were advertised on 19 January 2018 and not as the Complainant’s submission suggests. These were promotional positions, at a higher grade, advertised by way of open competition. A total of 63 candidates applied for the roles, one of whom was the Complainant. Of the 63 candidates, a total of 8 positions were filled. The Complainant was not successful. In this regard, the description of the position issued to all Applicants is that voice usage was essential. At the time of the advertisement of the Claims Adjudicators on 19 January 2018, the Complainant had been provided with alternative work since 15 August 2017, in excess of five and a half months, explicitly and specifically to allow her to rest her voice following numerous medical recommendations. In addition, her most recent assessment by Dr. A, had been conducted on 12 January and the subsequent report, dated 15 January 2018, recommends that she ‘continue to rest her voice’. The Respondent said that in that context alone, qualifications, experience and suitability for the role aside, it would appear somewhat disingenuous to suggest that the Respondent would offer her a role that clearly required using her voice, which would be contrary the Respondent’s duty of care to the Complainant. The Complainant remained on ‘respite’ duties over the subsequent weeks and following a further visit to Dr. A on 12 April 2018, a letter was issued to the Complainant’s GP, noting that the Complainant’s vocal chords were ‘healthy now’. The Complainant wrote to the Respondent expressing an interest in email training with colleagues and also in a role on the Complaints Triage team. The response from the HR Manager assured the Complainant that the HR team had been examining any alternative work which would not require telephony, but to no avail. However, the HR Manager assured the Complainant that her request would be passed to Mr. B for consideration.   The Respondent actively sought suitable alternative work for the Complainant. A letter of 27 April was furnished to Ms, D by the Company Doctor, setting out the recommendations made by Dr. A regarding a phased return to work as a result of which an email from HR dated 1 May 2018 issued to the Complainant. The Complainant enquired as to possible non-phone roles within the contact centre and Mr. B is clear and unambiguous in the course of his communication on 1 May where he advices her that no non-telephone roles exist. In keeping with the arrangements for a phased return to work on the telephones within four weeks, arrangements were made and shared with the Complainant by Ms. D. Arrangements as agreed provided for the Complainant to work two hours on phones on Monday 14 May, four hours for the remainder of that week, six hours per day for the following week, increasing to an eight hour day commencing 28 May 2018. The Complainant, also on 14 May, attended speech therapy for a further assessment of her voice difficulties. A comprehensive series of tests appear to have been conducted in the resultant report. The Respondent said the report does not contain recommendations regarding working on phones however, it does contain a number of recommended exercises. The Complainant experienced further voice difficulties on 14 May, following just 2 hours telephony work and again on 16 May. The Respondent refers to emails which confirm ongoing communication with Ms. D and the Complainant in relation to her return to phone work and also evidence Ms. D’s communication with the Complainant’s Speech Therapist. These emails occurred on 16 and 17 May, where the Complainant again visited Consultant Dr. A, who issued a further letter on 21 May. The copy letter from Dr. A again recommends that vocal rest ‘would be useful’. A later conversation on 22 July between Ms. D and Dr. A, where he states and indicates ‘there is no medical apparent reason why [Complainant] can’t work on the phones’. The Respondent said that the Complainant’s claim that on Friday 18 May the Company Doctor and Ms. D, Occupational Health Nurse “told [her] that her problem was ‘purely psychological’ and “that there was no medical reason why she can’t talk” was disputed and it said that it was absolutely without foundation. It points to what was documented in a note by Ms. D, penned after a meeting with the Complainant and the Company Doctor, on 18 May. It said that it is clear from these notes that the issue of the Complainant’s hoarseness was discussed; the fact that the attempted return to telephone work was unsuccessful and that there was no medical reason for her hoarseness. Stress as a factor causing the Complainant’s hoarseness was discussed by the Doctor however, the Complainant did not accept that stress had any bearing on her voice. The Respondent presented both Ms. D and the Company Doctor at the hearing and their evidence conflicted the Complainant’s recount of events. The Respondent said that it is important to note also that all the meetings, appointments and discussions were a backdrop to ongoing medical checks, at a very substantial financial cost to the Respondent, while the Complainant, who’s contractual role was that of   Customer Care Sales Advisor, had, at that juncture, been provided with alternative work for a period of nine months, in compliance with all recommendations. The Respondent presented emails dated 16 and 17 May 2018 which evidence ongoing communications with the Complainant, in relation to her phased return to phone work and it is the Respondent’s position that the content of these communications signal nothing but patient and genuine concern for the Complainant, in direct contravention to the alleged statement set out in the Complainant’s submissions. The Respondent said that the Complainant’s evidence is that her voice returned on 19 May 2018. However, Dr. A’s letter dated 21 May is at odds with that position, given his comment in the letter that the Complainant ‘has been hoarse for the last four days’. The Complainant was seen by Dr. A on 17 May and the letter issued four days later. It is not unreasonable to assume that Dr. A’s comment is based on fact. The Respondent did meet with the Complainant and she attended with her trade union representative, on 31 May. She was given a letter and asked to read it and consider. The Complainant felt that she could not take it in and needed to get advice. The Complainant was told they needed a reply by the end of June. The letter set out that the respite accommodation would conclude at the end of July 2018 and outlined open options for the Complainant to consider. It was clarified that all its roles required telephone work and that no non-telephony roles were available. It was confirmed also that the respite, non-telephony role could not be kept open beyond the end of July because of work demands. The Respondent said that the only option open to it in these circumstances and in particular in the face of medical reports which had deemed her fit to fulfil her contractual duties but which she felt she was not able to do, was to terminate her employment. This position was committed to writing by letter dated 29 June, which confirmed one months’ notice, the Complainant’s final date of employment being 27 July 2018. As was indicated at the meeting of 31 May, the Complainant was again referred to the Company Doctor, who provided a report of his assessment by letter dated 20 July. The Respondent totally disagrees with the Complainant’s claim that she was dismissed ‘ostensibly’ on grounds of incapacity. It said that the Complainant was dismissed on the ground of incapacity, against a backdrop of in excess of ten months respite from telephone work, which work was the core element of her contractual role. It is the Respondent’s position that this accommodation extends extensively beyond what would be expected of a reasonable employer. The Respondent highlighted that all medical advice was clearly stating that the Complainant was fit for work. However, she was advising that she was unable to perform her core duty. In relation to the claim that the Respondent did not institute disciplinary proceedings (if they felt she was misleading them) or seek medical advices regarding their belief that her problems were “purely psychological”. The Respondent said that there was no reason whatsoever to institute disciplinary proceedings. The Respondent did not view any of the unfortunate elements of the Complainant’s situation as ‘misleading’. The Respondent acted upon the medical advices and ultimately on the fact that despite those expert advices certifying the Complainant fit to work, the Complainant did not return to work. The Respondent noted the report from the Company Doctor dated 20 July 2018 where he said, “[The Complainant] informed me that in her opinion she would not last one day talking at a desk as her voice would get hoarse and disappear. This is difficult to explain medically” The Respondent said that despite very extensive medical attempts to identify and rectify the issue with the Complainant’s voice, and despite the ultimate medical expert opinion that the Complainant was fit to return to work, the Complainant herself decided that she could not do so, when every accommodation had been provided to her, in addition to other alternative options, which she chose not to accept. It is the Respondent’s position that the Complainant was not unfairly dismissed from her role but that the Complainant was unable to fulfil the contractual obligations of the role that she was employed to do and refers to Section 6(4). The Respondent said while the Complainant was unable to fulfil her contractual obligations every possible reasonable effort was made in the interim to accommodate her with alternative options within the Respondent. It said that the attempts to accommodate the Complainant extended substantially beyond what would be expected from a reasonable employer.

Claims under Section 77 of the Employment Equality Act 1998.

In regard to the claim under section 77 of the Employment Equality Act, 1998, the Respondent said the Complainant cannot succeed in her claim of discrimination on the ground of disability or failure to provide reasonable accommodation. The Respondent claims that the Complainant has not named a comparator against whom she has been less favourably treated on the ground of disability. It is submitted that the Complainant was treated with the utmost respect and support, together with being provided every possible available support to facilitate her return to work. It said that the Complainant must discharge the evidential burden upon her, by establishing facts from which it may be inferred that discrimination has taken place. The Labour Court’s finding in Mary Margetts v Graham Anthony & Company Limited [EDA 038; 7 August 2003]. Without prejudice to the Respondent’s position it said that the Complainant cannot establish a prime facie case, that the Respondent has not contravened any of the relevant provisions of Section 16 of the Employment Equality Acts 1998 to 2011, in the circumstances of the within claims. All its obligations have been complied with. The Complainant in this case did not continue to undertake the duties attached to the position for which she was employed, despite medical evidence and certification that she was fit to do so. Despite expert medical advice confirming the Complainant 's fitness to return to her contracted position, the Complainant did not do so, on the basis that she felt she was not, or was no longer fully competent and available to undertake, and fully capable of undertaking, the duties attached to the position for which she was contracted. The Respondent said that it provided all possible assistance to the Complainant by way of facilitating respite for her until she was deemed fit to return to her contractual role and by providing extensive accommodations and medical assistance to her. The Respondent cited the position stated by Mr Justice Sean Ryan in the Court of Appeal judgment in Nano Nagle School v Marie Daly [2018] IECA 11, that an employer does not have to "{strip} away essential tasks, especially the precisely essential elements that the position entails" to accommodate an employee. Ryan P continued that 'On a legitimate, reasonable interpretation, it is incorrect to demand that redistribution however radical must be essayed no matter how unrealistic the proposal." It said that the Nano Nagle Court of Appeal finding was referenced in a Labour Court examination of an Equality claim appeal, in EDA1815 Excellence Limited and Adam Herzyk with regard to return to work to “light duties” which had not been defined by a medical professional. The employer was also receiving conflicting medical certificates regarding whether the employee was indeed fit to return to work. The employer was left with little option but to dismiss him on incapacity. The Respondent noted were it said “.. he was and remained as of the date of his dismissal, unfit to perform the core duties of the job for which he was employed…the Respondent was not under any obligation to provide the Complainant with an alternative job in another department or to remove the core duties of the job for which he had been employed such as to substantially alter the character of that job...” The Respondent said did all it could to facilitate the Complainant's return to work, exercising its responsibility to the Complainant by ensuring, by all available means, that it was fully aware of the employee’s condition and made genuine efforts to accommodate their return to work.  However, as the case law prescribes, an employer is not obliged to leave a position open for an employee who is unable to perform the essential functions of the role. The Respondent said it made bona fide efforts to facilitate the Complainant, both in the context of reasonable accommodation and medically at substantial costs arising in various areas.

CA-00021619-001 - Section 8 of the Unfair Dismissals Act, 1977

I have taken into account all of the evidence and submissions, both written and oral, made by the parties.    

Unfair dismissal

The Unfair Dismissals Act 1977 as detailed at Section 1(a) states:

“dismissal, in relation to an employee, means–

(a)    the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.”

“date of dismissal” means–

(a)  where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

I note from the evidence adduced that the Respondent and the Complainant were in regular contact and communication from the start of her unfortunate difficulties with her voice, which first arose, in August 2017, and right through to the various different meetings and assessments, culminating in Mr. B’s letter of 31 May 2018. This letter specified that the Company had taken a decision of termination of the Complainant’s employment contract as of end of July 2018. I note that this letter, sets out the position of the Respondent as to her inability to perform her role and that as of end of July 2018 there will be no other role available. The Respondent does ask the Complainant to consider other options which might assist her prior to the termination date. These options are, a two-month paid leave period to assist in alternative employment, or a six months career break to facilitate her to get further assistance so that she could return to her telephony role or to seek alternative employment. Mr. B invites the Complainant to contact him or Ms. X.

Section 6(4)(a) of the Unfair Dismissal Act provides:

‘Without prejudice to the generality of subsection (1) the dismissal of an employee shall be deemed, for the purpose of the act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following;

(a) The capability, competence or qualifications of the employee for performing work of the kind required which he was employed by the employer to do

The Respondent submitted that this provision rendered its termination of the Complainant as a fair dismissal. I note the decision in Bolger v Showerings (Ireland) Limited [1990 ELR 184] where the High Court set out the key requirements to be met when an employee is being dismissed for incapacity:

1. Ill health must be the reason for the dismissal;

2. This must be a substantial reason;

3. The employee must be notified that dismissal for incapacity is being considered; and

4. The employee must be given a chance to be heard.

I note that this was further underpinned by the Labour Court in Humphries v Westwood Fitness Club (EED 037) ED/02/09. It is clear that the case law addresses two requirements, one that ill health be wholly or mainly the reason for the termination of the contract and secondly that the requirement for fair procedure and natural justice is necessary for processing such cases. I note the determination of the EAT in Behan v An Post UD 320/2006 as cited in the Respondent’s submissions, where it found, “the Claimant had rendered himself incapable of fulfilling his obligations to his employer under his contract of employment … because of the Claimant’s incapacity to fulfil his contract with his employer in a reasonable fashion the Tribunal consider his dismissal fair in all the circumstances” I understand that in practice what is required here is that the employee’s capacity to perform her duties would be fairly reviewed and that she has had the opportunity to participate in any review, allowed to make representations, and be given fair warnings that dismissal is a possibility where there is no likelihood of a return to work within a reasonable period. Finally, the employee must have been given the right to appeal any decision made. I have documented in detail the factual evidence presented to me by the parties and I find that the Respondent met these obligations. I note that the Respondent had an employee orientated and solution centric approach throughout. I note it was the Complainant who led with regard to her capabilities, and the Respondent listened. It did not force anything beyond the medical advice and recommendations. The Complainant although deemed fit to return to work was advising the Respondent of her not being able to carry out telephony duties. I note the cited paragraph from Behan above in this regard. I take note that the Respondent presented other options to the Complainant to continue on with the employment relationship beyond the 31 July 2018, but it was the Complainant who chose not to take up those options. I note that the Respondent continued to accommodate medical assessment up to the 20 July 2018 some eleven days before her last day of employment and note there was no appeal filed by the Complainant on the decision to terminate her employment although she was afforded the opportunity. Accordingly, I am satisfied that the Respondent met the various tests set out in Bolger and Westwood Fitness, referred to above, and that the dismissal was fair.

CA-00021619-002 - Section 77 of the Employment Equality Act, 1998

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. The first matter I must 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 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;” The definition of a disability has been interpreted in an extremely broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark v Dansk Almennyttigt Boligselskab C-335/11 and C337/11, where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.” In the instant case, it was not in dispute that the Complainant has had issues with her voice which renders her at a time as mute or without speech. I have considered the evidence and apply the definition of disability in the Act and the interpretation from the HK Danmark case above and I am satisfied that the Complainant was originally diagnosed by Dr. A on 8 August 2017 with “mucosal irregularities on both vocal cords … do not require surgery … allow early recovery her voice should be rested”. I note the evidence that the Complainant has not recovered fully, where she is still troubled with the loss of voice. Accordingly, I am satisfied that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts, at all times relevant to this complaint. I note that this fact has not been challenged by the Respondent. 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. I have taken into account all of the evidence and submissions, both written and oral, made by the parties.  

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …..”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

Section 16(3) of the Employment Equality Acts 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 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) 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) to 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, in particular, 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 adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, 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 in 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 his duties. The Complainant contends that the Respondent has failed to provide her with reasonable accommodation in accordance with its obligations under Section 16 of the Acts. It claims that the Respondent has failed to provide her with reasonable accommodation, in not allowing her to move to another department or facilitate her with different role(s) within the department so as to find a permanent solution for her return to work in an appropriate alternative position within its workplace. The Respondent disputes the claim and contends that the Complainant was deemed medically unfit to work and that it provided her with temporary alternative roles for 11 months throughout the time she was being medically assessed. It provided her with access to its medical practitioners and consultants; it followed the recommendations to the letter of the law, including speech and language therapy, all at significant cost, all with the purpose to help her recover and return to work in her role as a customer care sales advisor, which is predominately a phone based role and requires the use of voice. The Respondent was adamant that it looked for other roles with it to see if she could move to those roles, however, her voice was a factor as it was needed in all roles. The Respondent in reply to the roles mentioned by the Complainant as being possibly a suitable alternative, said that no such roles existed within her cohort; the ‘adjudication role’ she identified was a promotion where there was a competitive interview for the role, which the Complainant undertook but was not successful. The Respondent said notwithstanding the role required the use of one’s voice. The Respondent said that the Complainant was moved to different departments in an effort to keep her employed but that was not sustainable, the work on the phones is what she was employed for and was the core of the work. I note that the Complainant was deemed medically fit to return to work however, after numerous trials she lost her voice again rendering her unable to carry out the tasks assigned to her. I have captured above the extensive interaction between the Complainant, the Respondent and all the various medical and professional specialists that were involved in this case. I am satisfied that it was comprehensive. I have noted the Respondent’s interaction in particular and I cannot be critical in how it managed the process and try to manage the situation. I note the medical reports recommend rest and avoidance of the Complainant using her voice and the Respondent’s positive reaction to each. I note the Respondent enabled the medical experts to fully investigate the Complainant’s condition without interference, and with support. I note the Complainant’s evidence that both the Company Doctor and Ms. D in a discussion with her on 18 May 2018 said that maybe her loss of voice was ‘purely psychological’ that there was no medical reason she cannot talk. The Complainant then goes on to say that if that was the position of the Respondent why did it not investigate that ‘psychological’ angle and/or take disciplinary action against her. I would agree with the Complainant here if that was the case. I note at the time that the medical reports were indicating that there was nothing physically wrong with the Complainant. I also note that the Complainant had been questioned as to her stress levels, - which could have explained her loss of voice, – and she indicated stress was not a problem. However, I note that both the Company Doctor and Ms. D, which I accept have substantial experience in the occupational therapy field, attended the hearing and fervently deny ever having said anything like that. This evidence is very important in the scheme of this case. I believe that had the Respondent held that the loss of voice was ‘purely psychological’ and failed to examine that, it could be said that it was not fully informed of the medical facts of the disability before any deterrent decisions effecting the Complainant were taken. As the evidence here is at dispute, I considered the supporting documentary evidence at the time and it would corroborate the Respondents version of events. I, therefore, prefer the Respondents evidence on this important matter. The Complainant is very critical of the Respondent’s offer of two options which she claims were used to get rid of her from its employment. I have examined the evidence and as I have noted above I have found that the Respondent’s conduct to be credible heretofore. The meeting with Ms. X and Ms. Y in June 2018, I am satisfied, are in addition to understanding the physical difficulty with her voice and with the lack of identifying a suitable alternative she is facing the possibility of termination. I am satisfied that these two additional options are an attempt to assist her rather that drive her out of her employment. Therefore, the question that I must decide is whether or not the Respondent failed to comply with its obligations under Section 16 of the Acts to provide reasonable accommodation to the Complainant in the circumstances of the facts and the nature of her disability and the medical information that was available to it. The Complainant was upset that from the Respondent failed to provide her with a modified role or an alternative role. In this regard I take note of the decision in Nano Nagle School -v- Daly [2019] IESC 63 from the Supreme Court, which is now seen as the leading and most up to date authority in relation to the obligations on an employer under the provisions of Section 16 of the Acts. In this judgement MacMenamin J. held at paragraph 84 that: “… s.16(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 access to employment, to participate and advance in employment, and to 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 or herself”. Having regard to the evidence adduced in the present case I understand that the Complainant was facilitated by being moved to different roles during the majority of a full year to allow her voice rest in accordance with the recommendations from the medical advisors. I note the evidence that this was not a permanent solution as the Complainant’s role within the Respondent required her to use her voice. I note the Complainant’s own opinion at the time when she informed the Company Doctor “that in her opinion she would not last one day talking at a desk as her voice would get hoarse and disappear”. This is an unfortunate and substantial challenge to the Complainant and the Respondent, bearing in mind that her position was predominantly a phone advisor. I am satisfied that the Respondent assessed the difficult situation it found itself in. I note the position of the Complainant in her contract of employment. I have heard what the position entails. I note from the leading authorities that the duty to provide reasonable accommodation does not obligate it to create a new role for the Complainant or to remove the core duties of the job. It is clear from the judgement in Nano Nagle that the duty to provide reasonable accommodation within the meaning of Section 16 of the Acts cannot be infinite or remove all of the duties which a disabled person is unable to perform as that would almost inevitably become a disproportionate burden. Having regard to this, I am satisfied that it is reasonable to conclude from the evidence adduced that the Complainant is no longer able to perform the essential and necessary duties of the job in respect of which she was employed. In applying the principles set out in Nano Nagle, I am satisfied that the Respondent’s obligation to provide reasonable accommodation in the specific circumstances of the present case 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 facie case of discrimination on the grounds of disability contrary to the Acts and that her complaint fails. 

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint of unfair dismissal is not well founded and is, therefore, rejected. Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. 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 and that her complaint fails. 

Unfair Dismissals Acts - Employment Equality Acts – loss of voice – not well founded