Complainant

Respondent

Anonymised Parties

Law Clerk

Law Firm

Act

Complaint Reference No.

Date of Receipt

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

CA-00028170-001

03/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028170-002

03/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028170-003

03/05/2019

The Complainant has been an employee of the Respondent since 3 March 2003 in the role of Law Clerk/Legal Executive. On 10 June 2014, the Complainant was in a road traffic accident, which resulted in injuries to her neck and shoulder. These injuries cause ongoing chronic pain and, with the exception of a brief attempt to return to work in July 2016, the Complainant has remained on sick leave (and one period of maternity leave).

On 31 January 2019, the Complainant contacted the Respondent to inform it that she had been deemed medically fit to work by her doctor on a phased basis as from 26 February 2019 subject to a number of conditions. As of the date of the hearing, the Complainant had not yet returned to work.

The Complainant claims that the Respondent has discriminated against her in failing to provide her with reasonable accommodation for a disability. The Respondent rejects the complaint.

The Complainant has also submitted two complaints under the Organisation of Working Time Act in relation to the accrual of annual leave whilst on sick leave.

The Complainant submits as follows:

The Respondent is a firm of solicitors.

The Complainant has been an employee of the Respondent since 3 March 2003 in the role of Law Clerk/Legal Executive. From 2003 until approximately 2009 her hours of work were 9am to 5pm Monday to Friday, at which point it changed by agreement to 8am to 4pm. In 2013, the Complainant was asked to take on, in addition to her own duties, the post duties of an employee who had taken extended sick leave and was not expected ever to return to work as he would be retiring shortly. It was proposed that the Complainant’s hours of work would be changed to 7.30am to 3.30pm Monday to Friday and the Complainant agreed to this alteration, which, she believed, was on a permanent basis.

In general, the Complainant arrived at the Respondent’s offices before 7am, whereupon she sorted and distributed DX post using a lift. The Complainant’s main duties involved attending the non-jury / judicial review list of the High Court on behalf of the Respondent. For this, she prepared a list for Court, as well as any subpoenas and setting down documents to be filed in the High Court Central Office after her attendance in Court. The papers and brief can be quite heavy and large. However, wheeled bags are available for this reason and can be used by any staff as needed. The Courts buildings also contain lifts, which are commonly used by legal personnel for the purpose of transporting wheeled bags and/or trolleys.  

The nature of how the Courts operate is such that the Complainant has always been able to get up and walk around, as she is not specifically required to sit for long periods, and in fact in the course of her duties she has often stood while in Court as a matter of course.

Upon the Complainant’s return to the Respondent’s offices, she would then be responsible for all updates on the Respondent’s system, outcome letters to clients and the return of papers to clients, as well as the allocation of papers for adjourned dates. She also commonly dealt with queries from clients/court offices/solicitors by email and/or telephone. The Complainant assisted colleagues in a number of areas, where required, including regarding preparation of documents and/or reception cover. As from 2013, the Complainant generally left the office to return home at 3.30pm.

On 10 June 2014, the Complainant was in a road traffic accident, which resulted in injuries to her neck and shoulder. These injuries cause ongoing chronic pain and, with the exception of a brief attempt to return to work in July 2016, the Complainant has remained on sick leave (and one period of maternity leave). When the Complainant returned in July 2016, she requested a two-day working week, to which the Respondent agreed. The Respondent at that point attempted to unilaterally change the Complainant’s hours to 9am to 5pm. The Complainant did not agree to this and asked for her “normal hours”, as it would have doubled her commute time and thereby significantly exacerbated her injuries, with the result that for the period of her return the Complainant worked 7.30am to 3.30pm as normal.

The Respondent also attempted to limit the Complainant’s accrual of annual leave to days during which the Complainant was actually working and she was obliged to notify it that she was legally entitled pursuant to the Organisation of Working Act 1997 to accrue annual leave during sick leave.

Regrettably, the Complainant was not sufficiently recovered at that time and due to her injuries resumed full sick leave after four weeks of work. The Complainant decided that any further return to work should not be attempted until such time as she had undergone any further necessary procedures and was fully recovered such that she could resume her normal duties.

In January 2019, the Complainant’s doctors thoroughly reviewed the Complainant’s injuries and concluded that she had reached the end of her recovery such that it would be in order for her to return to work on a phased basis. On 31 January 2019, the Complainant contacted the Respondent to inform it that she had been deemed medically fit to work by her doctor on a phased basis as from 26 February 2019 subject to the following:

·         An initial 2-day week for one month, following which a 3-day week could be considered.

·         Resumption of her contractual hours of 7.30am to 3.30pm, which would facilitate a shorter commute.

The Respondent did not respond until 6 February 2019, at which point it requested a meeting with the Complainant off-site. This was unusual as the Complainant had always previously met the Respondent in its offices.  

On 13 February 2019, the Complainant met with the Respondent in good faith and advised it that she had reached the end of her recovery, i.e. while recovered she would have ongoing difficulties sitting for long periods and carrying heavy weights. She advised the Respondent that she anticipated being fit to return to her regular duties, subject to the above accommodations. The Complainant further advised the Respondent that it was possible that some further adjustments might be required once she returned to work and tested her limitations. The Respondent suggested, in light of the Complainant’s injuries, that it might limit her work to probate, reception work and short court applications, or even transfer her to its other office. The Complainant was open to its suggestions but repeated that she would anticipate being able to return to her previous duties, i.e. that it would not necessarily need to take any such steps.

At the Respondent’s request, and to facilitate it, the Complainant agreed to work an initial 3-day week rather than the 2-day week advised by her doctor. The Respondent then informed her that she could no longer begin her working day at 7.30am as there would be no work for her at that time. That had not been her experience, as she had always been busy from 7.30am onwards, and in any event her agreed contractual hours have been 7.30am to 3.30pm since 2013. To avoid a long commute and exacerbation of her injuries, the later start time suggested by the Respondent – 8.30am - would require the Complainant to wait in town for an hour after her arrival in Dublin before commencing work. However, she agreed to the later start time for the purposes of facilitating the Respondent and because she genuinely wanted to return to work. The Complainant informed the Respondent, however, that she would still have to leave by her contractual finishing time of 3.30pm, as she had since 2013, and the Respondent did not express any difficulty with that.

The Complainant also raised at that time her preference to take her 2017 accrued annual leave prior to her return to work and the Respondent agreed to look into this.

It was agreed that the Respondent would be in contact to make arrangements around the Complainant’s return.

It was not until 20 February 2019 that the Complainant was contacted by the Respondent and, rather than advising her of return to work arrangements, it was to advise her that it would require her to attend an occupational health specialist on 1 March 2019, which appointment post-dated the date on which she had already been deemed medically fit to work by her own doctors. Its letter also entirely mischaracterised her comments regarding potential post-return adjustments as “clear reservations” on her part about the work she would be required to do, which the Complainant did not in fact either have or express. The Complainant responded the next day to correct this misrepresentation, repeat her full confidence in her ability to return to work, and again queried her accrued annual leave from 2017. The Respondent did not respond.

The Complainant attended the occupational health specialist appointment and, having been made fully aware of the requirements of her role, the occupational health specialist agreed that the Complainant was immediately fit to return to work. On 5 March 2019, the Respondent contacted the Complainant by email to confirm that she would be returning to work. However, the Respondent now said for the first time that the Complainant would be required to work until 4.30pm, despite the fact that the Complainant had been entirely clear that she would not be capable of undertaking the commute required by a later finishing time. This was also a variation of her contractual hours of work to which she had not agreed.

The Respondent also informed the Complainant that she would not be required to return to work until 27 March 2019, which surprised the Complainant as by now she had been deemed fit to work by both her doctor and the Respondent’s doctor. In relation to the Complainant’s query regarding her 2017 annual leave, the Respondent only noted that this would be reviewed and discussed upon the Complainant’s return to work.

The Complainant responded to the Respondent’s email to correct what she reasonably assumed was an error regarding her working time. The Complainant asked to take her accrued annual leave before returning to work or, in the alternative, if the Respondent would be prepared to agree to her taking her leave at a later date (i.e. if it would agree to a longer timeframe than her statutory entitlement). The Respondent responded to express the view that the Complainant could not take annual leave until she had physically returned to the office. The Complainant was surprised by this as she had been certified as fit to return by both her and the Respondent’s doctor and so there was no reason why she could not return to work and take annual leave for the initial period of such work. The decision not to permit her to return until 27 March 2019, thus (in her view) delaying her ability to take annual leave, also seemed somewhat arbitrary and potentially designed to deny her entitlements.

As regards her working hours, the Respondent denied that a 3.30pm finish had ever been agreed and said that the occupational health specialist had indicated that the Complainant was fit to work until 4.30pm. The Complainant was surprised by this as the occupational health specialist had stated to her that it would be recommending a 3.30pm finish and, in any event, those were her contractual hours. The Respondent said that the Respondent would only agree to a 3.30pm finish for one month as any longer would put pressure on other colleagues. The Respondent did not outline how the resumption of the Complainant’s contractual hours of work would or could do this.

On 8 March 2019, the Complainant responded to the Respondent to reiterate the legal position regarding her annual leave in accordance with the Organisation of Working Time Act and to suggest again that she be permitted to take it in advance of her return to work in accordance with her entitlements and as the least disruptive option. The Complainant also asked the Respondent to clarify the position with the occupational health specialist as regards her hours and asked it to come back to her as soon as possible.

The Complainant received no response to this email, to her enormous anxiety, and so emailed the Respondent again on 20 March 2019 to ask it to respond as she was finding the situation stressful. That day, she received a letter from the Respondent dated 15 March 2019 in which the Respondent specifically took issue with the “tone” of the Complainant’s email (i.e. the email in which she had had to remind the Respondent of her legal entitlements pursuant to the Organisation of Working Time Act). The Respondent’s letter advised the Complainant that a 3.30pm finishing time would not work for it (despite being her agreed contractual hours) as it would require her to work for a full day. This made no sense to the Complainant as she was fully willing to work her contractual hours of 7.30am to 3.30pm, a full day, but the Respondent had not permitted her to do so. The Respondent advised the Complainant that the remit of her role was beyond its control and that some of the recommendations as regards accommodations could not be met. The Respondent said that the recommendations would require it to substantially alter the core duties of her job to facilitate medically advised restrictions. It did not outline how this could possibly be the case.  

It later transpired that the occupational health specialist had specifically advised that the Complainant avoid lifting more than 4kg. In any event, the Complainant is confident she would not be required to do so in circumstances where she can use a wheeled bag or trolley in the course of her duties (as the Respondent is aware). The occupational health specialist had also advised avoiding sitting in Court for more than 30 minutes, which would not present a difficulty in circumstances where the Complainant can stand up regularly in the course of her duties, even in Court, of which the Respondent is also fully aware.

In conclusion, the Respondent refused to permit the Complainant to return to work on the basis of the above. It made reference to the Nano Nagledecision of the Court of Appeal (later overturned by the Supreme Court) and said that the Complainant’s return would require it to alter the core duties of her role. In fact, the Complainant is fully capable of doing her job as she has always done it, albeit that (as above) it is possible that some minor adjustments may have to be made in due course. The Respondent have not even given the Complainant the opportunity to test her limitations in that regard and so have made its decision arbitrarily, opportunistically and capriciously.  

Direct evidence of the Complainant

The Complainant advised that in January 2019, her doctors indicated that she was as well as could be expected and that no further improvement was envisaged. The Complainant then contacted the Respondent on 31 January 2019 with a view to returning to work. She sought a phased return and she felt that some slight adjustment in her working conditions might be required.

The Complainant said that the off-site meeting of 13th February 2019 when she met the Respondent, caused her stress and anxiety in that she could not understand why the meeting was not held in the Respondent’s office.

At the off-site meeting, the Respondent indicated that the Complainant would be required to return to work on a three day week basis but did not provide any specific reason for this. The Complainant said that a number of possible positions within the Respondent organisation were discussed. The Complainant explained that some slight adjustment might be required to enable her to carry out her previous role but that she indicated that she did not envisage any difficulties with her capabilities.     The Complainant that she felt that the Respondent mis-represented her reference to further adjustments as a reluctance on her part to engage with it in relation to her return to work.   The Complainant said that she was not asked at the meeting if she could pull a wheeled bag. The Complainant said that the Respondent insisted that she worked from 9am until 5pm on her return.

Counsel for the Respondent asked the Complainant if she accepted that the job as she did it in 2013 required her to do things that, on a reasonable reading, are inconsistent with medical reports.

The Complainant replied that she believed that she could have done her old job without any limitations. She felt that she should be afforded the opportunity to see if she could do her old job. The Complainant said that she does not know her limitations and that she should be allowed to test her limitations.

The Complainant said that she felt that the occupational health specialist recommendations would not cause any difficulty and she believed that she would stand in the office and at court.

The Complainant added that she wanted to finish work at 3.30 pm and she believed that the day could be rejigged to suit that aspiration.

In response to Counsel for the Respondent, the Complainant agreed that the DX bags of post which arrived in the office every morning were heavy bags which would have to be dragged to a lift and brought up to the second floor. She also agreed that the volumes of paper which she would have to bring to court could vary from day-to-day and that Monday was a very busy day in court.

Counsel for the Respondent put it to the Complainant that her attendance at court could be very lengthy, particularly on Mondays, and that it would not be feasible to stand up as to do so could mean that sensitive papers were left unattended on a table.

The Complained responded that she believed that she could stand at the end of table.

In response to a question from the Adjudication Officer in relation to her contracted hours, the Complainant referred to a letter from the Respondent on 5 May 2016 concerning her then proposed return to work in which the Respondent confirmed that her hours of work were 7.30am to 3.30pm.

Legal Submissions

There can be no question that the Complainant’s injuries constitute a disability for the purpose of the EEA. Section 8(1) of the EEA, specifically prohibits discrimination on the part of an employer against an employee in relation to conditions of employment.

It is clear in this case that, in refusing to permit the Complainant to return to work, the Respondent has not given sufficiently serious consideration to the Complainant’s capacity as opposed to her incapacity and the Complainant refers to A Meat Company v A Worker EDA 28/2016 in relation thereto.

Section 16(3) of the EEA imposes the obligation of reasonable accommodation on employers for employees. For the purpose of Section 16(3) of the EEA, a person with a disability is to be considered fully competent and capable to undertake he duties attached to a job if it could do so with the assistance of special treatment or facilities. Such treatment or facilities can include the adaptation of premises or equipment, patterns of working time, distribution of tasks and the provision of training. It requires employers to take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace, i.e. it requires an individualised approach by employers.

The nature and extent of an employer’s obligations in this regard was considered by the Labour Court in An Employer v A Worker EDA 13/2004 [2005 ELR 159], where it was noted that the provision of special treatment or facilities necessarily involved an element of more favourable treatment as “a means to an end…it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow it to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable…”.

In Case C-335/11, HK Danmark v Dansk almennyttigt Boligselskab [2013] IRLR 571, the Court of Justice said that the concept of reasonable accommodation should be defined broadly. The Court confirmed that the primacy of international agreements concluded by the European Union mean that instruments of secondary legislation of the European Union are to be interpreted, insofar as possible, in a manner consistent with those agreements, i.e. that that Directive 2000/78/EC, insofar as it relates to disability, is to be interpreted in harmony with the United Nations Convention on the Rights of Persons with Disabilities ("CRPD"), which was approved by the European Community by Council Decision 2010/48/EC of the 26th November, 2009. (OJ 2010/L23/P35).

In that regard, the Complainant refers to Article 1 of the CRPD, which recites that the purpose of the CRPD is to:

… promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for its inherent dignity…

Article 2 provides that discrimination on the basis of disability means any distinction, exclusion, or restriction on the basis of disability that has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field. This includes all forms of discrimination, including denial of reasonable accommodation. It defines reasonable accommodation as being necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.

Article 5 deals with the equality and non-discrimination. Article 5(2) provides, insofar as material:

States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

Article 5(3) provides that:

In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.

Article 27 of the CRPD outlines the rights of persons with disabilities at work, which encompasses "the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities." State parties to the CRPD have an obligation under Article 27 to "safeguard and promote the realisation of the right to work, including for those who acquire a disability during the course of employment" through measures such as reasonable accommodation and prohibition of discrimination.

The Supreme Court in Nano Nagle also made reference to the CRPD, which had been ratified by Ireland on the 20th March, 2018, and the requirement to interpret the law in light of it, i.e. to centralise the dignity of the disabled person, which dignity is inextricably linked to the ability of that person to work. Rather than focusing on the disability, as the Court of Appeal had done, the Supreme Court confirmed that the correct model is to focus on the barriers that hinder the person’s participation in the workforce. McMenamin J said that:

“Directly relevant are Ireland's obligations under European Law as expressed in EU

Council Directive 2000/78/EC of 27 November 2000, the Framework Equality Directive. The Directive prohibits employment discrimination on the grounds of religion or belief, disability, age or sexual orientation. It states in Recital 16 that the provision of measures accommodating "the needs of disabled people at the workplace play an important role in combating" such discrimination. The 1998 Act must be interpreted in the light of the Directive. In turn, the Directive requires to be seen in the light of the international obligations entered into by the European Union, the [CRPD].”

While the Respondent has opportunistically attempted to rely on the Court of Appeal’s decision in Nano Nagle [2019] ELR 221, 260 in refusing to accommodate the Complainant, it has now definitively been decided by the Supreme court that the duty laid down under 16(3)(b) is mandatory; McMenamin J said that “the terms of the section are mandatory. It place a duty on the employer to show that, if it have not carried out such a process, then it is only because the reorganisation necessary would be disproportionate or unduly burdensome”. The Respondent has not given any consideration to the possibility of reorganising the Complainant’s tasks so that she could, for example, update the system, draft outcome letters to clients and arrange return of papers to clients, reassign papers for adjourned dates and answer any emails or queries left outstanding from the previous day, prepare the list and subpoenas/setting downs for that day, first thing in the morning at 7.30am rather than upon her return from court. The Complainant refers to Mr B v A Metal Processing Company [DEC-E2013-196], in which the employer was successful in defending a claim where it had employed an “imaginative solution”to maintain its employee’s position. The Respondent has failed even to do this.  

The Respondent made specific reference to the core duties of the Complainant’s position, i.e. versus the “non-essential” tasks referenced in the Court of Appeal’s view of Nano Nagle. In fact, the Complainant maintains that she would be able to undertake the core duties of her role were any attempt made to facilitate her. Therefore, the Complainant submits that she does not need to rely on the Supreme Court position on the redistribution to other employees of what were main duties or essential functions of a position. Even were that not the case, the Complainant refers to McMenamin J’s judgment that it could not have been the legislative intention “to create a situation where by deploying the term ‘tasks’ to divide up the term ‘duties an employer could effectively render an employee’s duty incapable of performance“, as the Respondent has attempted to do.

The Complainant also refers to the Labour Court’s decision in A Government Department v An Employee EDA 062 and the WRC’s decision of 1 May 2019 in Worker v Airline Service Company, ADJ-00017364, in both of which Court/Adjudication Officer referenced the possibility of unconscious or inadvertent discrimination” and said that “mere denial of discriminatory motive, the absence of independent corroboration, must be approached with caution”. Whatever the Respondent’s denial of any discriminatory motive in its treatment of the Complainant, it is clear that the Respondent has made a decision that the Complainant cannot do her job and/or would be a liability in the Respondent’s office as a result of her disability and that, for this reason, the Respondent has refused to accommodate the Complainant.

The Respondent submits as follows:

The Complainant complains that the Respondent has discriminated against her by reason of disability.

The recent decision of the Supreme Court in Nano Nagle School v. Daly [2019] IESC 63 is the leading authority on this issue. The Respondent has fully complied with its statutory duties pursuant to section 16(3) and (4) of the Employment Equality Act 1998, as amended, in providing “reasonable accommodation” or “appropriate measures” to accommodate the Complainant’s disability, to enable her to return to work.    

The Complainant remains an employee of the Respondent. The Respondent has indicated its wish for the Complainant to return to employment and in this regard, it has made reasonable accommodation for the restrictions identified in the medical reports.

The Respondent has repeatedly stated that the Complainant may return to her position on a phased basis.   This has not been challenged by the Complainant.

The issue of the Complainant’s contractual hours remains in dispute. It is the Complainant’s position that her contractual hours are between the hours of 7.30am to 3.30pm. It is the Respondent’s position that the contractual hours are 8.00am to 4.00pm.

The Respondent submits that the Complainant’s hours of work per her Terms of Employment dated March 2003 are 9.15am to 5.15pm. The Respondent submits that sometime later she was accommodated with an adjustment to her hours to facilitate her commute and home life. The adjusted hours were 8am to 4pm, Monday to Friday.   In late September 2013, on a temporary basis to cover the sick leave of another colleague, her hours of work were once more adjusted by mutual agreement to 7.30am to 3.30pm as she had agreed to open the morning post, prior to the office opening hours, while the sick leave cover was required. Subsequently, following the retirement of the colleague for whom she was covering, that 7.30am position was filled. It is the Respondent’s position that the Complainant proposed the change in working hours to 7.30am to 3.30pm and that the Respondent agreed to her proposal.

The Respondent believes that the work that was undertaken early is now excluded by terms of medical advice.

The Respondent submits that the courts sit until 4pm and that it is not possible to come back to the office any earlier. The Respondent believes that if it facilitated the Complainant’s request to do so, it would put undue pressure on other colleagues.

The Respondent has considered every reasonable alternative to enable the Complainant to return to her employment.  

In her report dated 4th March 2019, the occupational health physician opined that the Complainant was fit to return to work with restrictions. She identified these restrictions as avoiding lifting a weight of more than 4kg, sitting in court for more than 30 minutes, and allowing for regular breaks every 2 hours to do exercises. The Respondent engaged with this report and sought to ensure that these restrictions would be made to enable the Complainant return to work.    

The occupational health physician added the following:

“I am supportive, if it is at all possible, with her request of return to work 3 full days from 07:30 to 15:30 (Monday, Wednesday and Friday).” [emphasis added]

In her report dated 30th January 2019, the Complainant’s General Practitioner stated:-

“I also feel that it would be beneficial if [the Complainant] could resume her previous working hours of 7.30 to 15.30. This is to minimise the amount of time that she is stationary in her car which will exacerbate her symptoms.” [emphasis added]

Neither of the medical reports state that the working hours sought by the Complainant are a mandatory restriction on her employment.  

Unfortunately, there is no work available for the Respondent before 8am within her restrictions. The Complainant had previously collected and opened the post at 7.30am in the morning.   This task involves lifting a weight far in excess of 4kg. The Complainant is welcome to arrive at the workplace before 8.00am if this would assist her commute.

While the employer has control over the restrictions identified in the workplace, it cannot be responsible for the length of time of an employee’s commute between its home and the workplace. An employee cannot demand that the employer resolve every problem – an employer is obliged only to provide reasonable accommodation. The Respondent suggests that the Complainant could take a break in the course of her commute.  

The Respondent has engaged with the restrictions identified by the occupational health report, and considered every reasonable alternative. The Respondent is happy for the Complainant to return to her employment but can only provide work between the hours of 8am and 4pm. An appropriate position reflecting her skills and experience will be provided.  

The Complainant relies on the decision of the Labour Court in An Employer v. A Worker EDA 13/2004 [2005 ELR 159] as authority for the proposition that it may be necessary to consider adjusting the person’s attendance hours or to allow it to work from home. This is not disputed and these matters have been considered by the employer.   However, following a thorough consideration, there is simply no work for the employee (within her restrictions) before 8am and it would not be appropriate to bring client files home due to GDPR considerations.  

Direct evidence of the Respondent

The Respondent said that it was pleased when the Complainant reached out to it in January 2019 and indicated that she wished to discuss a possible return to work. The Respondent said that the meeting of 13 February 2019 was arranged for the Complainant’s benefit. It knew that the Complainant would be emotional and fragile, and it felt that a neutral location closer to her home would suit her.

The Respondent submits that it wanted to facilitate the Complainant’s return to work in a way that would not exacerbate her injuries. To that end, a number of alternative positions which could accommodate the Complainant’s limitations were discussed at the meeting, including moving to another office location, working in the probate area or working in reception combined with other duties. The Respondent felt that it was met with reservations and no conclusion was reached as none of the alternatives suggested was acceptable to the Complainant.   The Respondent felt that it was not meeting someone who was fit and well and was “very struck by the Complainant saying that this is as good as it gets”.

The Respondent said that it would have to take account of the limitations as expressed by the occupational health specialist. The Respondent found it hard to reconcile the medical advice with the nature of its business. It did not want the Complainant to exacerbate her injuries. At all time, it was concerned about its inability to accommodate the Complainant.

The Respondent did not believe that the Complainant could stand in a court room and mind the client papers for which she was responsible. The Respondent said that the nature of the court buildings meant that it was not always possible to pull a wheeled bag full of documents.   Sometimes, wheeled bags would have to be lifted up and down steps.

The Respondent said that it struggled, and continues to struggle with, a 3.30pm finish time. Clients often need to make contact after 3.30pm and, therefore, cover has to be provided up to 4pm. The Respondent said that its agreement to the Complainant’s request for a 7.30am to 3.30pm start in 2016 was to try to make her re-entry as easy as possible.

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 it be of sufficient significance to raise a presumption of discrimination. However it 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”.

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".

It was not in dispute between the parties that the Complainant is a person with a disability within the meaning of Section 2(1) of the Acts and that the Respondent was notified of same.

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

Section 16(1)(b) of the Acts provides an employer with a complete defence to claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which the Complainant has been employed. However, Section 16(3)(b) of the Acts provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if she/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

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 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”.

The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of all reasonable accommodation, then there is no discrimination at issue.

MacMenamin J. returned to this point at par 107 of the judgment where he said:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.”

In setting out this test, the Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

Throughout the hearing, the Respondent continuously referred to the Complainant as a valued member of staff and emphasised that she continues to be an employee.

I note that, prior to the Complainant’s proposed return to work in early 2019, the Respondent wrote to her on 20th February 2019 in the following terms:

“As is usual in circumstances where an employee has been out with an injury for the length of time that you have been out, we will require you to attend our own occupational health specialist, for assessment as to your fitness for work.

This is required, not only for our own peace of mind, but also our insurers will require it.”

The occupational health assessment took place on 1 March 2019. The occupational health specialist issued her assessment on 4 March 2019 as follows:

“Fitness for Work - Restrictions / Accommodations

In my opinion, [the Complainant] is fit to return to work with restrictions. These would consist in avoiding lifting more than 4kg, being set in the court for more than 30 minutes, as well as allow her regular breaks every 2 hours to do some exercises.

I am supportive, if it is at all possible, with her request of return to work 3 full days from 07:30 to   15:30 (Monday, Wednesday and Friday). I would suggest a review in 2 months.”

An exchange of correspondence between the parties then ensued which concluded a letter from the Respondent to the Complainant dated 15 March 2019 which included, inter alia, the following:

“Regarding the work itself, I can now confirm that the Doctor did indeed suggest a 3:30 p.m. finish time. I had been working off her cover email which simply referred to a 'Full day'. The actual report. which came some days later, suggests 3:30 p.m., which of course, is not a 'Full day'.

As we have stated several times, these working hours simply will not work for us, however we cannot allow you to ignore what is clear medical advice, both from your own GP and from the occupational health specialist.

Although, of course you could stop for a break on your commute home, it does not get us out of the fact that the core duties of the job of a Law Clerk here, require silting in court for periods in excess of what has been recommended, and over which we have no control, and also involve sitting at the desk while in the office, for extended periods.

Also, due to the voluminous nature of many of the Court papers, we could never guarantee that the restricted weight limit which has been recommended, i.e. under 4kg, would be adhered to. Again we have no control over the nature and size of court papers which are a necessary part of the everyday work.

Both the Court of Appeal and the Labour Court support the view that as your Employer we are under no obligation to substantially alter the core duties of your job to facilitate restrictions which are medically advised. And don't get me wrong, we are totally sympathetic to your ongoing difficulties, but we just don't see how we can accommodate same.

The combination of the commute from [the Complainant’s home] to [the Complainant’s workplace] and the inability to sit in court for more than 30 minutes are simply hurdles that cannot be overcome, and are in your best interests. And as I have said, much of the work involves the use of a bag that would exceed the recommended weight limit for you.

Please be assured that we have given your request much time and consideration and we have tried to see how we could facilitate a return to work on a phased basis, but both the medical advice and the work that has to be done here are just incompatible right now.

In the end, it is your welfare that is priority, and while I know you are keen to get back to work, which is admirable, you must not hinder your recovery or undo any of the progress that you have made to date.

When you and your Doctor consider that you can undertake the work required, on a full time basis, then please get in touch. As I see it at the moment however, the medical advice seems to be against that for now.

Hopefully the next couple of months will see some improvement.”

I am of the view that there were two core issues in dispute between the Complainant and the Respondent – the start and finish time of each working day and the restrictions identified by the occupational health specialist in relation to (i) the restriction on the Complainant lifting anything heavier than 4kg and (ii) the restriction on the Complainant sitting for more than 30 minutes.

Start and finish times

I note that there is a conflict between the parties’ understanding of the Complainant’s contractual hours – the Complainant is of the view that her contractual hours are 7.30am until 3.30pm whereas the Respondent is of view that the Complainant’s contractual hours are 8am until 4pm. In this regard, I note that, when the Complainant returned to work in 2016, albeit for a short period, the Respondent acceded to her request to be allowed to work from 7.30am until 3.30pm.

I further note that the occupational health specialist wrote in her assessment that she was “supportive, if at all possible” of the Complainant’s request to return to work for a three day week from 7.30am until 3.30pm per day.

The Complainant submitted that “the Respondent has not given any consideration to the possibility of reorganising the Complainant’s tasks so that she could, for example, update the system, draft outcome letters to clients and arrange return of papers to clients, reassign papers for adjourned dates and answer any emails or queries left outstanding from the previous day, prepare the list and subpoenas/setting downs for that day, first thing in the morning at 7.30am rather than upon her return from court”.

In considering the Complainant’s request to work from 7.30am until 3.30pm in order to minimise her commute, the Respondent appears to have concentrated solely on the postal sorting role which the Complainant carried out each morning at 7.30am prior to her accident. I am of the view that the Respondent did not adduce cogent evidence to show that it put sufficient effort into exploring what other work might have been available to the Complainant at that time. Likewise, the Respondent did not adduce cogent evidence to show that it had fully explored the possibility of facilitating her request for her working day to finish at 3.30pm.

On the other hand, I find that the Complainant did not adduce any evidence to show that the standard hours of work would exacerbate her injuries in any way or that the working pattern which she requested would make significant positive difference to her commute time compared to the Respondent’s preferred work pattern.

In light to the foregoing, I am of the view that neither party adduced compelling evidence to support its position with regard to start and finishing times.   Accordingly, I find that the issue of start and finish times is not determinative in reaching a decision on the herein complaint.

Restrictions identified by the occupational health specialist

Unlike her position regarding hours of work, the occupational health specialist did not qualify her recommendation regarding the restrictions which she stipulated in relation to the maximum weight the Complainant should lift or the maximum length of time for which she should remain seated. Accordingly, I am of the view that the Respondent was correct to interpret these restrictions as being non-negotiable.

At the hearing, the Respondent made it clear that it had considered the role which the Complainant held before her accident, and to which she wanted to return, in the context of the above restrictions. It was clear from the evidence adduced by the Respondent that it did not believe that it could guarantee that the maximum weight to be lifted by the Complainant would not exceed 4kg nor would it be able to facilitate her in sitting for no more than 30 minutes in court.

I note that, at the meeting between the parties on 13 February 2019, the Respondent proposed a number of alternative positions to the Complainant which it believed were a suitable match for the Complainant’s skills and experience but that the Complainant would not consider them.

I note the contents of the Complainant’s email to the Respondent of 21 February 2019 in which she stated, inter alia, that she was “confident in my capabilities, subject to the adjustments suggested by my doctor (including in particular avoiding long driving periods). …once I return to work, I will be in a better position to assess whether any further minor adjustments are required, such as ensuring that I can use wheelie bags rather than carrying heavy bags, etc. However, I would not envisage any material difficulties.”

Even, when probed by Counsel for the Respondent, the Complainant would not accept that medical advice was inimical to her return to work on her previous terms and conditions.   She stated that she wanted to be afforded the opportunity to test her limitations. Bearing in mind that the Respondent made it clear to the Complainant that it was seeking for her to be reviewed by an occupational health specialist, partially for insurance reasons, I am frankly at loss to understand what the Complainant means be testing her limitations. She did not appear to consider what would happen, if somehow the Respondent acquiesced to her return to work contrary to the proffered medical advice, and she exacerbated her injuries.  

Notwithstanding the clarification of my jurisdiction provided under the “Procedures” heading at the outset of this Decision, I am of the view that, in my decision making, I can take into account, a letter from the Complainant’s representative to the Respondent’s representative dated 6 December 2019 in which it wrote as follows:

“We call on your client to confirm that our client may now return to work upon the terms and conditions she has enjoyed since 2013.   Please confirm same by no later than close of business on Friday 13 December 2019.

In this regard, I am relying on the determination in A School v A Worker EDA 2/2012, where the Labour Court held that a Complainant could only rely on alleged acts of discrimination which occurred before the presentation of his or her complaint to the Equality Tribunal for the purpose of seeking redress. The Court added that evidence tendered in relation to later incidents, which had “probative value” in respect to any facts in issue in relation to matters comprehended by the complaint at the time it was made, could be admitted.

I am of the view that the letter of 6 December 2019 has probative value when considered in conjunction with the evidence adduced at the hearing in that it leads me to conclude that the Complainant was not willing to consider any changes to the terms and conditions of employment which she enjoyed in 2013 even where to do would be contrary to medical advice received by the Respondent. She appears to place great reliance on the non-binding element of the opinion of the occupation health doctor concerning her hours of attendance, whilst choosing to ignore the prohibitions in relation to the maximum weight she can lift and maximum duration for which she can stay seated.

I find that the Complainant’s refusal to countenance any resolution which did not entail her retaining all aspects of her previous position placed the Respondent in the impossible situation where the Complainant’s expectations can only be met by ignoring the available medical advice and permitting her to “test her limitations”.

I find, therefore, that the Complainant’s refusal to countenance any changes to her 2013 conditions renders it impossible for the Respondent to provide reasonable accommodation which complies with the independent medical advice which was provided by the occupational health specialist.

In this regard, I note that the Complainant remains in the employment of the Respondent, albeit absent on sick leave, and that the Respondent has expressed a willingness to provide the Complainant with “an appropriate position reflecting her skills and experience” which conforms with the advice of the occupational health specialist.  

On balance, and after much deliberation, 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.

I find that the Complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the Acts.   Accordingly, 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.

The Complainant submits as follows:

The Respondent refused and/or failed to permit the Complainant to take her annual leave entitlement, accrued during sick leave in 2017, in breach of the Organisation of Working Time Act 1997 (the “OWTA”).  

The Complainant was certified fit to return to work by her own and the Respondent’s medical practitioners. The Respondent delayed her return to work in order to prevent her from availing of her entitlement to annual leave accrued during 2017. The Complainant submits that it would make a nonsense of Section 20(1)(c) of the OTWA were employers able to delay employees’ return to work in order to avoid its obligations pursuant to that section.  

In that regard, the Complainant refers to the joined cases of Schultz-Hoff v Deutsche Rentenverisherung Bundand Stringer v Her Majesty’s Revenue and Customs [2009] EUECJ C-350/06, C-520/06 [2009], which decision resulted in Section 86(1) of the Workplace Relations Act 2015, amending the OWTA to provide that time on sick leave will be treated as “working time” for the purposes of the section. In Schultz-Hoff/Stringer, the European Court of Justice emphasised the huge significance of annual leave entitlements as a right pursuant to European law and the importance of employees being afforded the opportunity to exercise that right. Any interpretation of the OWTA that would permit employers to undermine that right would clearly be grossly at odds with the Working Time Directive.

At the hearing, the Adjudication Officer drew the parties’ attention to section 2 of the Organisation of Working Time Act which provides that ““leave year” means a year beginning on any 1st day of April” and invited the parties to make additional written submissions on this matter following the hearing.

The following is the Complainant’s additional submission:

The Complainant notes the position with regard to the definition of “leave year” in accordance with the Organisation of Working Time Act 1997.

Nevertheless, the Complainant maintains that the Respondent’s letter of 15 March 2019 is clear in outright refusing the Complainant’s entitlement to take the leave she had accrued between April 2017 and March 2018, notwithstanding her certification of fitness to return to work, in contravention of the Organisation of Working Time Act. That the Respondent erroneously believed such refused leave had been accrued between January and December 2017 in no way detracts from the refusal itself, which contravenes the Organisation of Working Time Act.

The Complainant refers to the case law already furnished at hearing. In addition, the Complainant submits that the obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] IRLR 559. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the ECJ made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

The Respondent rejects the complaint and submits that it was never its intention to deprive the Complainant of the annual leave which she accrued whilst on sick leave in 2017.

In the herein case, the Complainant contends that the Respondent, by delaying her return to work after a prolonged period of sick leave, prevented her from taking the annual leave which she had accrued whilst on sick leave.

I note the Respondent’s submission that it was not its intention to do so.

Relevant legislation

Section 20 of the Organisation of Working Time Act serves to regulate the timing of annual leave as follows:

“(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,”

The Act is very clear that the times atwhich annual leave is granted to an employee is determined by his or her employer having regard to a number of requirements as outlined in Section 20(1) of the Act.

In effect this means that taking of annual leave by an employee requires engagement between the employer and the employee – the employee cannot make a unilateral decision as to when annual leave, accrued or otherwise, is to be taken.

The Complainant sought to take her accrued annual leave prior to her return to work after a lengthy period of sick leave.

The Respondent, on the other hand, expressed a preference for the Complainant to return to work before taking her accrued annual leave. In its letter of 5 March 2019 to the Complainant, the Respondent wrote, inter alia, as follows:

“When you have returned to work, we will review your holiday entitlements and how we can best facilitate same.”

The Complainant responded by email on 5 March 2019 as follows:

“My understanding is that my leave entitlement for 2017 has to be granted within 15 months of the end of the leave year, in accordance with the Organisation of Working Time Act 1997, which means end of March.   Can you please confirm that I may take my annual leave in advance of my return date and/or if you want me to agree to take it at a later date?”

The Respondent replied by email late the same day as follows:

“As I understand the situation, you can only avail of the 15 month entitlement after you have actually returned to the workplace. We can discuss what arrangements would work best, after you have actually returned, as suggested, on 27th March next.”

The Complainant send a further email to the Respondent of 8 March 2019 in which she stated, inter alia, as follows:

“In relation to my annual leave, as you know this is a statutory entitlement and my employer is obliged to facilitate me in taking it in accordance with the Organisation of Working Time Act, i.e. within 15 months. There is no provision that I must have physically returned to work before taking this leave in circumstances where both my own and the Company doctor have deemed me fit to work. It is analogous to taking annual leave prior to returning to work after maternity leave. Much as in that case, I consider it would be appropriate and far less disruptive if I take this leave prior to my return to the office. Please come back to me as a matter of urgency to confirm that the firm will facilitate me in taking my leave as it is required to do pursuant to the Act.”

By 15 March 2019 the Respondent’s position with regard to the Complainant’s accrued annual leave had changed when it wrote as follows:

“Thank you for your most recent email (8th March 2019), the tone of which, I have to say, came as a surprise, given that we are doing our very best to assist you.

We have taken our own legal advice on the position, so that we can all be confident that we are in full compliance.

Since it is your holiday entitlement that seems to concern you most, I will deal with that first.

Since August 1, 2015, Section 19 of the Organisation or Working Time Act 1997 has been amended and since that amendment. the carry over period is 15 months, prior to the return to work date.

Therefore you no longer have any entitlement for 2017.”

It appears to me that both parties were under the misapprehension that the leave year should be construed as it was set out in the Complainant’s contract of employment i.e. the calendar year from 1 January to 31 December. This, however, is not in line with the section 2 of the Organisation of Working Time Act as interpreted by the Labour Court in Waterford City Council v O’Donoghue DWT0963 wherein the Court stated as follows:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself. That is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Accordingly, I find that that, for the purpose of accrual of annual leave whilst on sick leave, the leave year runs from 1 April to 31 March of the following year and not from 1 January to 31 December as provided for in the Complainant’s contract of employment.

Regardless of whether or not it was the Respondent’s intention to deprive the Complainant of a portion of the annual leave which she accrued while on sick leave, I am not persuaded by the Complainant’s submission that the Respondent’s actions contravene the provisions of the Organisation of Working Time Act. To do so, I would have to disregard the definition of “leave year” contained in section 2 of the Act and the Labour Court’s determination above. I am of the view that I am not empowered, as the Complainant appears to suggest, to make findings based on the intentions of the Respondent. I must confine my investigation to whether or not the Respondent actually breached the terms of the Organisation of Working Time Act in relation to the Complainant.

In light of the foregoing, I have reached the conclusion that this complaint is misconceived. I find, therefore, that this complaint is not well founded.

Having considered the evidence before me, I find that the complaint as submitted is not well founded.

In her letter of 8 March 2019, the Complainant raised a complaint regarding the Respondent’s failure to honour her entitlement to annual leave. In response, by letter dated 15 March 2019, the Respondent chastised the Complainant for her complaint and reneged on previous indications to the Complainant that her return to work would be facilitated. This amounted to an act of penalisation and retaliation against the Complainant.    

In University College Cork v Keohane WTC/01/26, DWT0147, 28 November 2001, the Labour Court held that:

“In Order to make out her complaint of penalisation it is necessary for the complainant to establish a causal link between her activities in seeking to have section 19 of the Act applied by the respondent and some detriment which she suffered in her employment. Such a link can be established by reference to particular facts or by inference from all the surrounding circumstances.”

It is the Complainant’s submission in this case that a link can be established on the basis of the above particular facts.

At the hearing, the Adjudication Officer drew the parties attention to section 2 of the Organisation of Working Time Act which provides that ““leave year” means a year beginning on any 1st day of April” and invited the parties to make additional written submissions on this matter following the hearing.

The following is the Complainant’s additional submission:

Without prejudice to the Complainant’s position that the Respondent has discriminated against her in its failure to provide her with reasonable accommodation, the Complainant in the alternative submits that the Respondent’s letter of 15 March 2019 may be interpreted as a negative reaction by the Respondent to the Complainant’s email of 8 March 2019 in circumstances where the Respondent expressly rebukes the Complainant for having done so. That being the case, it is open to the Adjudicator to regard the Respondent’s abrupt and outright refusals to facilitate the Complainant in any respect, as set out in that letter of 15 March 2019, as retaliation for the Complainant’s email of 8 March 2019.

The Complainant refers the Adjudicator to case law already provided at hearing. In addition, in circumstances where penalisation in breach of the OWTA is analogous to victimisation in breach of the Employment Equality Act 1994-2015, the Complainant refers to the Labour Court decision in Department of Foreign Affairs v. Patricia Cullen EDA116 to the effect that what is required for a Complainant to establish is that there is “both a cause and an effect in the sense that there must be a detrimental effect on the Complainant which is caused by him or her having undertaken a protected act”. Without prejudice to the Complainant’s actual claim pursuant to the Employment Equality Acts, as set out at hearing and in previous written submissions, the Complainant submits that it is entirely open to the Adjudicator to conclude from the correspondence between the parties that the Complainant suffered a detrimental effect that was caused by her having undertaken a protected act pursuant to the Organisation of Working Time Act.

The Respondent rejects the complaint.

Penalisation under the Organisation of Working Time Act is defined in section 26 as follows:

“(1) An employer shall not penalise or threaten penalisation of an employee for—

(a) invoking any right conferred on him or her by this Act,

(b) having in good faith opposed by lawful means an act that is unlawful under this Act,

(c) giving evidence in any proceedings under this Act, or

(d) giving notice of his or her intention to do any of the things referred to in the preceding paragraphs.

…

(5) In this section “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.”

As the Labour Court pointed out in O’Neill v Toni and Guy Blackrock Limited E.L.R. 21, albeit under a different statute:

“in order to make out a complaint of penalisation it is necessary for a claimant to establish that the detriment of which he or she complains was imposed “for” having committed one of the acts protected by Subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

The Complainant must, therefore, establish that she committed a protected act, within the meaning of Section 26(1) of the Act, before the other elements in this test come into play. The protected act upon which the Complainant relies in this case is seeking to take her accrued annual leave. I am satisfied that this is an act relating to invoking any right conferred on her by the Act and I find that this is sufficient to meet the test set out in the Act.

It seems to me, from reading the Respondent’s letter of 15 March 2019, that the Respondent treated the Complainant’s accrued annual leave and her return to work as two separate matters.

I am of the view that the Respondent engaged with the Complainant in an effort to reach a conclusion with regard to both the taking of her accrued annual leave and her return to work. In this regard, I note, in evidence adduced, that the Respondent restated its commitment that an “appropriate position reflecting her skills and experience will be provided”.   The Complainant failed to reciprocate that engagement as she would not countenance either a return to work before taking her accrued annual leave or a change in her role to take account of the advice of the occupational health specialist.  

In light of the foregoing, I find that the Complainant has failed to establish a causal connection between her request to take her accrued annual leave and the Respondent’s alleged failure to facilitate her return to work. I find, therefore, that this complaint is not well founded.

I find that this complaint is not well founded.

Reasonable accommodation – accrual of annual leave during sick leave – penalisation under OWT