EDA219

1.Appeal of Adjudication Officer Decision No. ADJ-00024398 CA-00031105-003

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 7 April 2020. A Labour Court hearing took place on 6 April 2021. The following is the Court's Determination:

DETERMINATION:

Background

This is an appeal by Mr. Donnelly, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, that G4S Solutions (Ireland) Ltd., ‘the Respondent’, had not discriminated against him on grounds of disability, contrary to the Employment Equality Acts 1998 to 2015.

The Complainant is employed as a security guard by the Respondent. Following an accident at work in April 2019, the Complainant was diagnosed with epilepsy. He was on certified sick leave until 29 May 2019, at which time he was assessed by the Respondent’s medical advisor in order to determine his fitness to return to work. The medical advisor stated that the Complainant was unfit for lone working, that he was fit for modified duties that could last up to a year, that he was fit for administrative duties such as CCTV monitoring or reception work and that, if modified duties were not available, he would remain on sick leave for up to one year.

The Complainant met with representatives of the Respondent on 14 June 2019, at which meeting he expressed a desire to return to work. The Respondent said that no roles were available at the time that did not involve some lone working and that modified duties were not a viable option.

On 1 August 2019, the Complainant lodged a complaint with the Workplace Relations Commission under the Acts.

The AO decided that the Respondent had not failed in its obligation under the Acts to provide reasonable accommodation to the Complainant as a person with a disability, as per s 16(3) of the Acts.

The Complainant appealed to this Court.

It should be noted that the submissions of both parties referred to events after the complaint was made, including a subsequent meeting between the parties and the fact that the Complainant was accommodated with a new role in October 2019. None of these matters form any part of the Court’s consideration and are not referred to again in this Determination. The Court’s responsibility is to examine a complaint of discrimination in respect of the six months’ period up to the date of complaint.

Summary of Complainant’s Arguments

At the meeting on 14 June 2019, the Respondent relied on a medical report, which was not given to the Complainant. At this meeting, the Complainant was told that there was no work for him, he was advised that he should stay on Illness Benefit for 12 months or get a letter from his Consultant stating that he can resume his usual duties. He was advised that he might be better off looking for work elsewhere.

The Respondent did not comply with what is required of them under the Acts. It was left to the Complainant to make all suggestions as to how he could get back working.

In providing reasonable accommodation, an important matter for consideration is the resources of the employer. In this case, the employer is a leading global integrated security company. It is difficult to understand how this company could not spend more resources in order to try to accommodate and retain its staff.

The Supreme Court has said that there is an obligation on employers to explore if state funds are possible and there is no evidence that these were sought.

There was little attempt to invoke any of the methods of appropriate measures as set out in s.16(4) of the Acts. The obligations set out for employers inHumphreys v. Westwood Fitness Clubwere not met.

The Supreme Court inNano Nagle School v. Marie Daly (2015) IEHC 785stated that an employer must look at not just a redistribution of tasks but must look also at the essential duties of a role for redistribution so long as it does so without putting a disproportionate burden on the employer.

The employer has failed in the duty of care to an employee. This should be reflected in the compensation to be awarded.

On the facts of this case, the burden of proof shifts to the Respondent as there is a clear inference of discrimination, as perSouthern Health Board v. Mitchell. In accordance withHallinan v. Moy Valley Resources, the Complainant has established that he is covered by a protective ground, that specific treatment has taken place and that the treatment was less favourable than would be afforded to somebody not covered by the relevant discriminatory ground. As perPortroe Stevedores v. Neven and Ors(2005) ELR 282the Respondent’s motive is irrelevant.

In all the circumstances, the highest award possible is sought. The Complainant was left to put forward all solutions. He has to bear the cost of obtaining legal representation and he was left at home for months even though he was medically certified as fit to work, as long as it was not lone working. Article 17 of the Framework Directive requires that the sanction be ‘effective, dissuasive and proportionate’. A range of cases with substantial awards are provided in the submission to the Court.

Summary of Respondent Arguments

At the meeting on 14 June 2019, the medical report was discussed with the Complainant, including the recommendation of no lone working or safety critical roles. It was explained that the number of sites that met these requirements were rare and that none were available at that time. It was explained also that modified duties were not available. However, he was assured that when a viable option was available, it would be discussed with him. The Complainant was assured that his position with the Respondent was safe.

The Respondent discussed all available options and committed to reviewing the situation.

To accommodate the Complainant in a role that was neither safety critical nor could avoid lone working, ( beyond those of CCTV monitoring or reception, which were not available at the time), would require a second security guard on site at all times to shadow the Complainant, essentially doubling the cost to the Respondent. This would have imposed a disproportionate burden on the Respondent.

To establish aprima faciecase of discrimination, the Labour Court has noted inCork City Council v. McCarthy EDA 21/2008,it is necessary to show probative facts from which it may be presumed that discrimination occurred and , as noted inMelbury Developments v. Valpeters (2010) ELR 64, mere speculation or assertions cannot be elevated to a factual basis upon which such an inference can be drawn. The Complainant provides no evidence of less favourable treatment. The fact that reasonable accommodation could not be provided is not enough to infer discrimination.

The Supreme Court judgement in the ‘Nano Nagle’ case, see above, requires only that an employer should take such measures as to enable the employee to be considered fully competent in performing the duties in question. There is no requirement on an employer to create a new role.

The Complainant did make suggestions. These were listened to and considered. In a real sense, the Complainant was consulted.

At the time, there were no practical or reasonable measures available to the Respondent to facilitate the Complainant in returning to work. Placing an extra employee on site would have created a disproportionate burden on the Respondent.

There was no reasonable solution available to allow the Complainant back to work before his eventual return.

The Applicable Law

Employment Equality Acts

2.

“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;

Discrimination for the purposes of this Act.

6.

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) 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 insubsection (2)(in this Act referred to as the ‘ discriminatory grounds ’ ) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Nature and extent of employer’s obligations in certain cases.

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1)shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(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.

(4) Insubsection (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 ofparagraph (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;

“employer” includes an employment agency, a person offering a course of vocational training as mentioned insection 12(1)and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to inparagraphs (a)to(c)ofsection 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body.

(5) Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful.

(6) Without prejudice to the generality ofsubsection (5), that subsection applies in particular where the employment concerned involves access to minors or to other persons who are vulnerable.

Burden of proof.

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

Deliberation

In any case of claimed breaches of the Acts, unless or until the Court can be satisfied that there are facts, which have been established, from which it might be presumed that there has been discrimination, the burden of proof rests with the Complainant.

In the instant case, there is no dispute between the parties that the Complainant has a disability within the meaning of the Acts.

The second fact on which the Complainant relies is that, at the time when he lodged his complaint with the Workplace Relations Commission, his employer had failed to make any of the adjustments provided for in s.16 of the Acts that could have enabled him to resume his employment with the Respondent. It is argued that this failure constitutes a breach of the Complainant’s rights under the Acts.

The first issue for the Court to consider is whether this failure can give rise to an inference of discrimination that would shift the burden of proof to the Respondent.

In support of such a proposition is the fact that 6 weeks or so after the Complainant had met with the Respondent, he had not been provided with an opportunity to return to work. There can be no doubt that in some situations where minor adjustments in the work might be involved, such a delay could give rise to a presumption on aprima faciebasis that discrimination had occurred.

On the other hand, the Respondent argues that they were prepared to try to accommodate the Complainant but that it was not possible simply to return the Complainant to any role in the organisation, that the roles that could meet his requirements were rare and that none were available at the particular time.

The Complainant counters this by noting that he had raised the possibility of assignment to identified posts at the June meeting that could have met his needs.

The question for the Court is whether a delay of 6 weeks could, in the very particular circumstances of the case, give rise to an inference of discrimination such that the burden of proof would shift to the Respondent.

There can be no clear-cut, all-encompassing example or precedent to answer the question as to the point at which it would cease to be reasonable for an employer to require more time to make whatever adjustments are necessary to accommodate an employee with a disability? Such a determination can only be made having regard to the specific facts of a case.

In the instant case, it has not been disputed that the Respondent had a limited number of posts to which it could assign the Complainant. Quite simply, most posts were not suitable for his particular requirements. No evidence was provided to the Court to refute the Respondent’s claim that none of

the posts were available in the relevant period of 6 weeks. As the Court noted in theValpeterscase, referenced by the Respondent, see above, mere assertions are insufficient. If the Complainant wishes to establish that it was possible for him to have been accommodated in this period, something more than an expression of this belief is required. Otherwise, the only matter for the Court to consider is if a six week delay in finding a suitable post indicates an unreasonableness on the part of the Respondent such as to suggest that, despite its claims to the contrary, it did not intend to accommodate him and, as a result, failed to live up to the requirements of s.16 of the Acts.

Given the circumstances, finding a reasonable accommodation for the Complainant was not a straightforward matter and, if posts were not available immediately, it might reasonably be expected to take some time to complete. Therefore, the Court cannot say that there isprima facieevidence of discrimination, such that, as per s. 85 A, the burden of proof would shift to the Respondent. That being so, the Court cannot determine that the Respondent discriminated against the Complainant.

Determination

The Decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Tom Geraghty
OC	______________________
15 April 2021	Deputy Chairman