Complainant

Respondent

Anonymised Parties

An Administration Worker

A College

Representatives

Michael Monahan Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024818-001

24/12/2018

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

CA-00024818-002

24/12/2018

The complainant, on her return from sick leave, was initially allowed to attend medical appointments twice each week without reduction in pay for a period of 5 months.   At that stage the employer reduced her pay in respect of such attendances and the complainant alleges this is discrimination and failure to provide a reasonable accommodation and also in breach of the Payment of Wages Act.

The Complainant has worked as an Administrator with the respondent college since the 1st of September 2016. In or around March 2018 she was on sick leave for three months returning in June 2018. Since then, she has been under the care of the Mental Health Service and was diagnosed with PTSD and severe depression.   Prior to the lodging of application with the WRC she attended two appointments per week consisting of one hour on a Monday and Wednesday.   She arrived at work at 11.00am on both mornings. As appointments were not fixed and appointments had to be cancelled on occasion her work was completed on her return to her employment. This arrangement worked well and was approved by the Head of Department.  

The Employer then changed the HR Representative after which the complainant was informed that if she was not fit to do the job she was not fit to be there fulltime and she could not continue to receive payment for times she was not at work.   Her hours were reduced on that basis without agreement even though there was no complaint about the quality of her work. The Complainant was also concerned that the personal details regarding her sick leave, medication volumes and reasons for hospitalisation also ended up on the employment file without her consent.

Following that the Complainant was made to feel that her disability was a burden on the college financially in terms of her ability to carry out her role and, when she raised this with the Head of Department, she was told she was taking things too personally.  

The Complainant feels there was no effort to try and accommodate her disability with no negotiation around accommodations.

The statement made to her that she would no longer be paid for times that she attended at appointments was particularly upsetting given that College wide there were several employees that attended medical appointments on a weekly basis and continued to be paid their normal salary.  

The Complainant feels there is a breach of dignity at work policy which the respondent stresses is the basis of their contract with employees.

The Complainant feels she has been discriminated against due to her disability and is not treated equally with other employees and bullying tactics have been used against her with a clear breach of data protection rights in relation to the circulation of her private medical notes. All of this has impacted on her health and impacted hugely on her recovery.  

The Complainant is at a loss of earnings as a result of the cut back from 39 to 33 hours per week up to the Covid-19 lockdown period. The Complainant now works remotely and attends her medical appointments and continues with her work as normal within these confines. There has never been a suggestion that her work has in any way been affected by her attendance at two medical appointments per week consisting of one hour each.  

At present she is asked to work extra hours for no increase in pay back to her usual 39-hour week.  

In relation to the case law the provisions of Section 16 of the Act indicate the failure by the Employer to provide reasonable accommodation for the Employee’s situation.   The Nano Nagle case provides the rights of real substance to persons with a disability who wish to remain at the workplace. The case of ADJ00021550 A School v A Worker EDA2/2012 allows an Adjudication Officer to consider evidence of what has occurred since the initial application was lodged in December 2018 in terms of compensation.  

The Complainant notes the duty on the Employer under Section 16 of the Act to take appropriate measures to enable a disabled person to work unless these measures would impose a disproportionate burden. In this particular case the flexibility of the Complainant in relation to her working conditions and the failure by the respondent to indicate that there was any loss of working ability by the complainant as a result of taking these two hours off during the week, means there is not a disproportionate burden on the respondent.

The complainant alleges that she was unlawfully deducted payment for time off to attend medical appointments. The respondent submits that payment was made on a temporary basis for her to attend appointments, but this ceased from 22nd November 2018.   The complainant alleges that she was discriminated against based on her disability.

The complainant was on sick leave from 7 March 2018 to 9th July 2018. In meetings before her return arrangements were made to facilitate her return to full duties with a view to reviewing them after 3 months. These arrangements related to attending doctor’s appointments. In November the complainant was informed that the respondent could no longer continue to pay the complainant for time off to attend these appointments and that from December 2018 no further payment would be made for such absences.

Following an unsuccessful appeal of this decision the complainant submitted a complaint to the WRC on 24th December 2018 thus making the reference period for the Payment of Wages Act complaint the period from 25th June 2018 to 24th July 2018. Payment for December 2018 was made on approx. 13th December 2018 in which a gross deduction of €242.82 relating to the reference period was made.

The complainant’s contract is silent on the subject of attendance for medical appointments.   The sick pay policy indicates that employees should make every effort to schedule medical appointments outside of their normal working hours. If this is not possible appointment should be made at the beginning or end of the working day to ensure minimal impact on normal working arrangements.   Certification of attendance at such appointments should be provided to the employee’s manager. The respondent made reasonable accommodation for attendance at such appointments for 5 months after the complainant had been on paid sick leave for a period of 18 weeks.   It is not reasonable to expect the respondent to continue such payments indefinitely. The complainant’s contract allows for relevant deductions and therefore there was no breach of the Payment of Wages Act 1991.

Section 35 of the Employment Equality Acts Section 35 states;

a. 35(1) Nothing in this Part or Part II shall make it unlawful for an employer to provide, for an employee with a disability, a particular rate of remuneration for work of a particular description if, by reason of the disability, the amount of that work done by the employee during a particular period is less than the amount of similar work done, or which could reasonably be expected to be done, during that period by an employee without the disability.]

(2)         Nothing in this Part or Part II shall make it unlawful for an employer or any other person to provide, for a person with a disability, special treatment or facilities where the provision of that treatment or those facilities—

(a)         enables or assists that person to undertake vocational training, to take part in a selection process or to work, or

(b)         provides that person with a training or working environment suited to the disability, or

(c)          otherwise assists that person in relation to vocational training or work.

(3)         Where, by virtue of subsection (1) or (2), D, as a person with a disability, receives a particular rate of remuneration or, as the case may be, special treatment or facilities, C, as a person without a disability, or with a different disability, shall not be entitled under this Act to that rate of remuneration, that treatment or those facilities.

(4)         References in this section to a particular rate of remuneration are to a rate of remuneration which is not below the minimum rate to which the employee concerned is entitled under the National Minimum Wage Act 2000.

The Complainants form to the WRC was dated 04 January 2019 meaning the reference period runs from that date back to 05 July 2019.

The Complainant further has submitted that “The Complainant is at a loss of earnings as a result of the cut back from 39 to 33 hours per week up to the Covid-19 lockdown period.   The Complainant now works remotely and attends her medical appointments and continues with her work as normal within these confines. At present she is asked to work extra hours for no increase in pay back to her usual 39-hour week. There has been a loss in the earlier months in relation to which the Complainant will give evidence”.

This period is outside the referral period for this complaint. Secondly, this is inaccurate portrayal of events. The Complainant proceeded on a period of sick leave, on full sick pay, from 07 January to 11 January 2019, then on half pay, as per sick pay policy, until 27 February, then on unpaid sick leave, and returning to work on 07 May 2019. On return to work, and under medical advice following and occupational health appointment on 26 April 2019, the Complainant commenced on a 3-day work week initially. and following a further Occupational Health Appt on 11 June she returned to full time hours on 01 July 2019.

The Complainants submission indicates “The statement made to her that she would no longer be paid for times that she attended at appointments was particularly upsetting given that College wide there were several employees that attended medical appointments on a weekly basis and continued to be paid their normal salary.”.   This is not the case and any staff who do so either take it as sick leave, Time to be worked back etc. In general, on an ad-hoc basis employee are paid for time off to attend once off appointments but not on ongoing regularised basis.

The Complainant has not produced any evidence that such discrimination occurred and has failed to name a comparator against which such alleged unequal treatment may be judged. Furthermore, she has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the Complainant being the victim of discrimination.

The Respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

At the outset of the hearing it was clarified that the complainant’s full hours were 37 per week and not 39 as indicated in the complaint form.

CA-00024818-001: Payment of Wages

Section 5 of the Payment of Wages Act 1991 provides;

5.(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—  

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,  

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or  

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

The claim under the payment of wages act can only be well founded if the employer was not entitled to make the deductions. The complainant did not work the full hours of the contract and therefore the employer was entitled to make the deduction under clause 9 of the complainant’s contract of employment.   I therefore find the complaint under the Payment of Wages Act is not well founded.

CA-00024818-002: Employment Equality Act, 1998

Section 16 of the Employment Equality Act addresses the nature and extent of the employer’s obligations on the reasonable accommodation issue and states:

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.

Subsection 16(3) expands on the concept of ‘fully competent’:

16 (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) 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;

An employer, therefore, must facilitate a person with a disability by taking appropriate measures which may include modifying the job description itself, in terms of tasks or working hours to accommodate the employee but having consideration for the costs involved and the business needs of the company.

As with section 85(a) of the Act, the burden of proof lies with the complainant in the first instance to establish a ‘prima facie’ case from which an inference of discrimination may be made.

In the current case the complainant’s position is that the respondent should have been prepared to modify the working hours for the duration of time required for her to receive medical assistance by way of medical appointment during working hours, on two days each week, and with no loss of pay. She points to the fact that there were no complaints about the quality of her work and secondly, that others in the organisation were facilitated on a similar basis with no deduction in pay.

The Sick Leave Policy in the Respondent organisation is based on the Public Service Management (Sick Leave) Regulations 2014, S.I. No. 124 of 2014. The purpose of these Regulations was to introduce a uniform sick leave scheme which would operate throughout the public service. As such it is a term of employment of the complainant covering both the complainant and the respondent. Any different formal or informal schemes in operation within the Public Sector were superseded by this new scheme.

In relation to attendance the scheme states;

Sick leave may be granted to an employee who is unable to perform his/her duties:

·       Because of illness, injury or

·       When absent for the purpose of obtaining health-related services (e.g. Doctor/Dentist) provided such appointments could not have been arranged outside of regular working hours or working days

There is nothing in the scheme regarding continuous appointments during working time.

The respondent’s Sick leave policy states in relation to medical appointments;

Employees should make every effort to schedule medical appointments outside of their normal working hours. If this is not possible, appointments should be made at the beginning or end of the working day to ensure minimal impact on normal working arrangements. Certification of attendance at such appointments should be provided to the employee’s manager.

The requirement for certification of attendance for appointments would point to a formal scheme rather than any informal arrangements.

The complainant has provided details of comparators in the college who were allowed to attend regularly without deduction in wage. The respondent has stated that they are unaware of such practices. I am satisfied based on the evidence of the complainant that such practices exist. However, it is clear that they are informal and perhaps approved by a local manager, rather than part of a uniform policy of the respondent. I do not accept that such informal practices could result in an interpretation of the regulations that would mean that attendance for medical appointments should be permitted during working hours weekly, on an indefinite basis and without reduction in pay.

The complainant has argued that there was no complaint about the quality of her work and that this must form part of the consideration when deciding on the question of reasonable accommodation. The nature of the complainant’s employment was not a ‘piece work’ contract whereby remuneration would relate to the amount of work carried out. Rather it was based on hours of attendance during which she could be assigned tasks at the discretion of the employer. Therefore, a reduction in the complainant’s availability for the contracted hours had an inevitable detrimental impact on the contract insofar as she could only be assigned tasks during a lesser period of time each week.

The respondent provided reasonable accommodation to the complainant by facilitating the reduced hours for a period of time without any reduction in remuneration. That is not in dispute. The question is whether or not this was an accommodation which could reasonably have been expected to continue indefinitely. The respondent facilitated that complainant in such a manner on the basis of 3 months initially and that the situation would be reviewed at that point. This was based on the expectation of both parties that the appointments would decrease over time. In actual fact the respondent facilitated the arrangement for 5 months which I consider to be sufficient to have met the respondent’s obligations to provide a reasonable accommodation. It is also of note that the respondent continued to facilitate the complainant’s attendance at such medical appointments albeit without pay.

The Complainant was also concerned that the personal details regarding her sick leave, medication volumes and reasons for hospitalisation also ended up on the employment file without her consent and has argued that this is also discrimination and evidence of bullying. Where medical details are supplied to an employer and these are treated in confidence by way of their retention on a personnel file in a secure location, I do not believe that this represents an infringement of the employee’s rights. Neither do I see it as evidence of bullying.

Accordingly, I find the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment on the disability ground.

I find the complaint under the Payment of Wages Act is not well founded.

I find that the complainant was not discriminated against under the Employment Equality Acts

Reasonable accommodation.   Attendance at medical appointments.