ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00037941 De Novo from ADJ 28572

Parties:

Complaints:

Date of Adjudication Hearing:  29 April 2022

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015, Section 41 of the Workplace Relations Act, 2015 and Section 28 of the Safety Health and Welfare at Work Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

CA-00049915-001     Employment Equality complaint

I have to decide if the complainant was discriminated against in relation to conditions of employment, and whether the respondent failed to provide the complainant with reasonable accommodation in relation to her disability submitted as a diagnosed Tachycardia?

 In reaching my decision, I have considered all submissions prepared prehearing, oral evidence and submissions adduced at hearing. I have also had regard to the Respondent post hearing documents comprising the CMO referrals, Job Descriptions and the Accommodation / Rehabilitative Policy dated 2014.

While June 12, 2020, is listed as the date of the last act of Discrimination on the complaint form, neither party was aware of a specific occurrence on June 12, on inquiry.

I sought comments from the Complainant side to the post hearing documents received but none were forthcoming.

I will say at the outset that I believe that the Complainant would have benefitted from a locally appointed representative much sooner in this case. I say this as it was clear from an early stage that the complainant had a pronounced difficulty is navigating her way through the Respondent internal disputes resolution process.

It is not lost on me either that the circumstances of this case, referred to the WRC in June 2020, collided with the onset of the covid 19 Pandemic, which I accept placed the Prison service on high alert and on an emergency footing as it strived to manage the Prisoners and staff safely within a congregated setting.

The Pandemic also co incided with the Complainants’ sick leave and I found that she was looking into the service from a distance during that time. I found that the distance soon adopted a remoteness from where the circumstances of this referral was made.

The claims have been strenuously defenced by the Respondent.

I wish to convey my appreciation to both parties who have presented their respective side of this case through a high level of preparedness and skill.

I would have liked to have heard evidence from any of the number of Medical Officers invested in the circumstances of this case. My investigation did take account of a range of medical reports, however, as in the evolution of the facts in the cases which prefaced Marie Daly and conjoined cases in Ring and Werge C-335/11 and C-337/11, hearing from the Practitioners directly involved in medical case management can be very beneficial, illuminative and instructive for a Decision maker.

 I fully accept that the Respondent made strident effort to maintain updates on the complainant’s general health and nature of medical reports during the circumstances of this case and can rely in that regard on the provisions adopted in Humphries. However, my attention has been acutely drawn in particular to the science of measurement raised in: Ring and Werge

 Ms Skouboe Werge underwent an assessment procedure at Jobcenter Randers, which concluded that she was capable of working for about eight hours a week at a slow pace. In June 2006 she was granted early retirement on the ground of her incapacity for work. In 2007 the Arbejdsskadestyrelsen (National office for accidents at work and occupational diseases) assessed Ms Skouboe Werge’s decree of invalidity at 10% and her loss of working capacity at 50%, subsequently revised to 65%.

I did not have the benefit of this field of measurement in this case as the complainant did not vary from the position where she obtained a “ return to work, albeit from home “ medical clearance in April , 2020  to an extended unfit to work at Cork prison by the Respondent OHD. A stalemate has ensued .

1 Disability

The Law on Disability is found in Section 2 of the Employment Equality Act, 1998

“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.

I am satisfied that that the Complainant can avail of the definition contained in Section 2(c) in that she has been diagnosed with a tachycardia in 2019, which is a long-term condition which is attributable to her absence from work. This absence has been compounded by the Covid 19 pandemic and reasoned  in the complainant’s evidence of her elevated fear levels in respect of the risk of acquiring Covid in a work setting .  

The Respondent has accepted that the complainant possesses a disability but has argued that her continued and open-ended absence from work grounded by a vacuum in a declaration of fitness to resume workplaces her firmly outside the ambit of the provisions of Section 16 of the Act.

Section 6 of the Employment Equality Act defines Discrimination.

Discrimination for the purposes of this Act

Section 6(1) of the Act provides that discrimination shall be taken to occur where:

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 in subsection (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,

The Complainant submitted

Section 8 of the Act prohibits Discrimination:

Discrimination by employers etc.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

Conditions of Employment:

The Complainant has submitted that she tendered an application to work from home on March 26, 2020. She  said that she sought to change her work location to a home setting to militate against her rising fear of acquiring the covid 19 virus within the congregated setting of the Prison environment.

The Respondent has acknowledged that the application was made but was unable to process the application as the Prison had a Policy of on mandatory attendance for essential workers on site.

The Complainant submitted that she felt well and ready to resume work post a 19 February acute clinical incident at work. This approach was endorsed by her GP through an April Report to the respondent, however the complainant  voiced that she was compelled to stay out of work and avail of critical illness protocol needlessly.

The Respondent contended that the complainant was an essential worker and there was no lea way. Her case was different to those granted accommodation through the Prison Policy, through Health and Safety leave and those in possession of historical supports. They argued that the Complainants role was essential to the onsite Security operations of the Prison.

I find that in the rapid notification of the shortly worded refusal to the application to work from home was forwarded in the full knowledge of the complainant’s disability. I have also found that the respondent placed a direction on the complainant to change her medical certificate to reflect a return to Cork prison. in May 2020.

I find that these facts are sufficient to raise an inference of discrimination for the respondent to now disprove.

Burden of proof.

85A.— (1) Where in any proceeding’s 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.

Reasonable Accommodation:

The concept of Reasonable Accommodation is provided for in Section 16 of the Act.

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.

……..

(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)—

F34[‘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.

……….

The topic of Reasonable accommodation has been fully considered by WRC, Labour Court, High Court, Court of Appeal, Irish Supreme Court and the Court of Justice at EU level. It is a hot topic in the world of work.  Both Ring and Werge and our own Nano Nagle case have been highly influential cases evolving as they did in parallel to the UNCRPD.

Disability is comprised of both the medical and social models. It is necessary for me to consider both models

Disability is a very broad definition, not subject to a temporal limitation. However, both parties in the instant case acknowledge that the complainant became ill for the first time through the progression of a two-year history of headaches in 2019.  Governor A recalled accommodating the Holter monitor worn by the complainant, through prison security in July 2019. He also had a clear recall of extending the Critical Illness Protocol on a number of occasions, going as far as to remind the complainant to address that aspect of sick leave cover.

For me, I listened to much evidence on the clinical details of the complainant’s illness in her evidence. I also listened in the respondent evidence on details of the referrals to CMO and the interparty communication on the medics surrounding both the active treatment of the condition of tachycardia and the approval of income continuance.

It is clear that both parties were actively managing the complainant’s medical condition through 2019 and up to the time of the referral to the WRC on 15 June 2020.

The Complainant has been on sick leave since the date of her clinical episode at work, needing emergency response dated 19 February 2020. There is no dispute about the severity of that episode.

I appreciate that there was an element of uncertainty in the declared prognosis in the complainant’s condition by her treating Consultant which was later invalidated through an under report of February 19, 2020, clinical episode. I also appreciate that the Complainant endured a number of cancellations of her planned procedures.

The Complainants own GP submitted a Report dated 22 April 2020 in the context of the Complainant requesting her to attest to her “medical history and fitness to work “She sought specific measures to “reduce her risk of contracting the virus given her underlying heart condition…… I feel that she is fit to work but not on site at Cork Prison.  “

On 9 July 2020, the CMO placed the Complainnant in a higher but not highest risk group for covid 19. He deferred to management on deciding “whether Ms O’Connor is prioritised for temporary working”. It was anticipated that surgery would cure the condition completely.

The Complainant continues to seek intervention for her condition which has not resolved through a number of delayed clinical interventions. This brings the circumstances within the vicinity of the social model of disability.

Therefore, I find that the Respondent is on full notice of the complainant’s disability. An Employee v An Employer [2014]25 ELR 273, distinguished.

Th Framework Directive 2000/78 at recitals includes

1 the provisions of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.

2 the Directive does not require recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities

It goes on to say that appropriate measures should be provided i.e., effective and practical measures to adapt the workplace to the disability

Whether the measures in question give rise to a disproportionate burden, account should be taken of financial and other costs entailed in addition to the scale of the organisation and possibility of obtaining public funding.

The purpose of the Directive, which does not provide a definition of disability at Art 2 is “equal treatment” where there shall be no direct or indirect discrimination.

This places section 16 of the Employment Equality Act, 1998 into central focus in this case .

Chacon Navas v Eurest Colectivades SA C-13/05[2006] IRLR 706 ,contained an earlier definition of disability which was expanded on in HK Danmark acting on behalf of the conjoined cases  Werge and  Ring V Dansk Almennyttigt Boligselskab (C -335/11),C-337/11 , when the court recognised that the definition in Chacon  fell short of the definition of disability contained in the United Nations Convention on the rights of Persons with Disabilities approved by the EU Community Council in 2009

The new definition emerged as

The concept of disability covers a limitation which results in particular physical, mental or psychological impairments which in interaction with the various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers

It is important for me to capture the very important questions tabled by Denmark to the CJEU, Court of Justice of the EU, as I will be returning to this later.

 In those circumstances, the Sø‑ og Handelsret decided to stay the proceedings and to refer the following questions, which are formulated in the same terms in Cases C‑335/11 and C‑337/11, to the rt for a preliminary ruling:

‘1. (a)s any person who, because of physical, mental or psychological impairments, cannot or can only to a limited extent carry out his work in a period that satisfies the requirement as to duration specified in Paragraph 45 of the judgment [in Chacón Navas] covered by the concept of disability within the meaning of [Directive 2000/78]?

(b)Can a condition caused by a medically diagnosed incurable illness be covered by the concept of disability within the meaning of the directive?

(c)Can a condition caused by a medically diagnosed temporary illness be covered by the concept of disability within the meaning of the directive?

2.Should a permanent reduction in functional capacity which does not entail a need for special aids or the like but means solely or essentially that the person concerned is not able to work full-time be regarded as a disability in the sense in which that term is used in [Directive 2000/78]?

3.s a reduction in working hours among the measures covered by Article 5 of [Directive 2000/78]?

4.Does [Directive 2000/78] preclude the application of a provision of national law under which an employer is entitled to dismiss an employee with a shortened notice period where the employee has received his salary during periods of illness for a total of 120 days within a period of 12 consecutive months, in the case of an employee who must be regarded as disabled within the meaning of the directive, where

(a)the absence is caused by the disability,

or

(b)the absence is due to the fact that the employer has not implemented the measures appropriate in the specific situation to enable a person with a disability to perform his work?’

On those grounds, the Court (Second Chamber) hereby rules:

1.The concept of ‘disability’ in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one. The nature of the measures to be taken by the employer is not decisive for considering that a person’s state of health is covered by that concept.

2.Article 5 of Directive 2000/78 must be interpreted as meaning that a reduction in working hours may constitute one of the accommodation measures referred to in that article. It is for the national court to assess whether, in the circumstances of the main proceedings, a reduction in working hours, as an accommodation measure, represents a disproportionate burden on the employer.

3.Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of the employer’s failure to take the appropriate measures in accordance with the obligation to provide reasonable accommodation laid down in Article 5 of that directive.

4.Directive 2000/78 must be interpreted as precluding national legislation under which an employer can terminate the employment contract with a reduced period of notice if the disabled worker concerned has been absent because of illness, with his salary being paid, for 120 days during the previous 12 months, where those absences are the consequence of his disability, unless that legislation, as well as pursuing a legitimate aim, does not go beyond what is necessary to achieve that aim, that being for the referring court to assess.

The Supreme Court of Ireland considered the UNCRPD in Nano Nagle School v Marie Daly [2019] IESC 63” “as part of the necessary backdrop to this appeal “Charlton J

It held that the requirement to reasonably accommodate an employee with a disability is a mandatory primary duty. Appropriate measures as provided for in section 16(3)  are subject to the defence of a disproportionate burden on the employer, who is bound to explore the possibility of obtaining public funding.

An employer should engage and consult with the employee but is not obliged to create a new role as manifestation of reasonable accommodation.

It is conceivable that an employee may not be able to undertake the duties, in spite of application of reasonable accommodation.

This landmark case clarified the spirit and intention of Section 16 of the Act when Mc Menamin J held at Para 91

The words of 16(3) provide that a person will be seen as fully competent if they would be fully competent on reasonable accommodation. Those terms too have meaning. they must be seen as being included in the legislative intention that what is contained in 16(1) can only be seen or understood in the context of what is provided for in 16(3) of the Act. section 16(3) is not peripheral. It is fundamental to understanding the section

I liked the reference made by Cathy Smith BL at a conference of the Employment Bar 2019, when she captured Reasonable Accommodation as:

“Reasonable accommodation is concerned with what can be done to remove or alleviate those barriers. The barriers are centre stage, not the impairment. To use an example, the steps are the centre stage, not a person’s mobility impairment. The steps in interaction with mobility impairment are the disability. A ramp is the reasonable accommodation. “

Analysis of the facts of the case:

The correct context and background to this case has to be seen as embracing the Covid era in this country. I accept that the Respondent Prison was on high alert and in emergency mode throughout the period from March 2020 to 15 June, the date this complaint was lodged with the WRC. It was an unprecedented era for which, in hindsight, no one could be viewed as  being equipped to navigate.

It did strike me early on those relations between the complainant and Governor A were cordial and healthy and this, for me was manifested in his prompt response to the complainant in her early applications until he acknowledged that he was unable to put the matter further. He advocated for and supported her in her application for critical illness protocol. The Complainant referenced informal conversations with Governor A in her early emails , but these did not find their way into her evidence.

I was troubled by the distance displayed by the complainant in relation to Income Protection payments which topped up the TRR. I found her reticent in terms of declaring receipt of this support payment which permits a 75% of income retention.  I appreciate that the “top up “payment was not sourced from the Respondent, however, it was factual account of income generation and was material to the case. While I appreciate her anger on this topic, an earlier declaration of this dove tailed payment would have been helpful for me .

It was common case that the complainant was replaced during her absence at work.

I established at an early stage that the claim for reasonable accommodation which I consider, first arose on March 26, 2020, may have had an earlier chance of resolution had it been channelled through the Respondent Grievance procedure. The Complainant said she was unaware of the scheme. The Respondent said it was contained in the staff manual. I requested the staff manual only to be informed that it was not available. The Respondent submitted that there a universal knowledge of this procedure . I could detect that from the complianants own evidence .

I am troubled that a localised disputes resolution was not readily available to someone in need of this. It may be that the complainant initially relied on the good relations with Governor A to elevate her wish to work from home to protect her condition, however, I find that a grievance may have elevated this request into a viable framework much sooner. Perhaps, nothing would have changed, but it may have empowered the complainant in disputes resolution and may have provided the Respondent an early opportunity to engage and consult, rather than feeling overtaken by the referral to the WRC I do not concur with the application of Mr O and Employer No 2 here.

I have, however, seen some application of the facts in Mr O v Employer No 1 [2005] 16 ELR 113

On the evidence before it, the court is satisfied that the respondent had a marked reluctance to accommodate the complainant in returning to work. He had been certified as fit to resume work (albeit on a phased basis) by his own doctors. Nonetheless the respondent, as was its right, sought a second opinion from Dr S. Dr S was furnished with a document detailing the full extent of the complainant's duties and was asked if he was fit to discharge those duties. The consultant was not asked to advise on what, if any, modifications in those duties might facilitate the complainant in returning to work. On receipt of that consultant's report, the respondent wrote to the complainant on July 18, 2002, to the effect that, in the consultant psychiatrist's opinion, he (the complainant) was not fit to return to work. He was also advised that his salary would cease from the following day.

 . I would like both parties to reflect on this omission surrounding the grievance, in that I disagree with Counsel for the Complainant who has argued that lodging a grievance was not an essential prerequisite in the case.

I find that there was a lot going on for the complainant as she remained on sick leave on the cusp of the Pandemic. She had both financial and professional concerns. This is clearly reflected in her first application which confirmed:

1. Postponed surgery
2. Contingency in case of exacerbation
3. Medical advice not to drive long distances
4. Dwindling cover of CIP
5. Expression of interest in covid leave
6. Request to work from home (Alternatively, could I ask you please to consider the possibility of me working from home during the waiting period)

And were confirmed in evidence.

This was actually replicated for the Respondent who was clearly challenged in striving to keep Prisoners and Staff safe and to minimise covid outbreaks on site. I was very taken by the powerful submission on these efforts by Governor A.

However, what followed next in the case was a refusal to accommodate working from home as “there is no agreement on prison-based staff working from home. Unfortunately, it can’t be accommodated “ It of crucial importance for me to reflect that the respondent did not advance “ the essential worker “ argument at that time .

The Complainant persevered in her request on March 30, when she repeated an application of CIP on exceptional circumstances. she also asked for a case to be made for Working from Home to the Work force Planning Group, which I understand was operational from early March as a strategic management force to manage the impact of covid across the Prison service.  During this application, the complainant acknowledged that she was Prison based. No submission was made to the Workforce Planning Group or any reason extended why that was not completed .

The complainant  sought to access the derogation allowed to HQ staff when she submitted

I could also work on HQ duties such as (3 examples led) She also requested remote access to her Prison Service account “to continue work duties  

One day later, she was informed by the respondent that there was no agreement for prison-based staff to work from home. this was accompanied by a clarification that the complainant was not covered by covid 19 regulations and CIP would run to September 2020. The complainant was also advised of counselling services.

Both parties acknowledged that the complainant had submitted the flyer on possible work duties. There was no agreement of when this was received. I find that as the wording is mirrored in part in the March 30 application. I concluded that these suggestions post dated the first application and predated the GP declaration of early April 2020. I note that Governor A freely admitted that he had looked at these, but they were not practical. The Complainant confirmed that she had not included a suggestion management plan for the 12 staff in her charge.

However, I must comment on what I now call a “missed opportunity “to consider these in full in terms of reasonable accommodation.

Governor A was clear in evidence that he sought clarification from Human Resources and the complete prohibition   to work from home was re-affirmed.

One of the central issues in this case, for me was the evolution of the medical condition into a recognised disability. The Complainant acknowledged that she had not led with the “word “disability when she sought an opportunity to work from home. Mr Z told me that possession of a disability was not a prerequisite to availing of the Accommodation Policy, 2014.

The Complainants own GP referred to her “as normally very well “in her 22 April 2020 report,

The Respondent was clearly adopting a “wait and see “approach to the Labour Court case of Cunningham and while submitted the case of Tartu Vangla, Preliminary Reference, neither Party made on the day submissions on the applicability of the case to Ms O’Connor.

I have read the case which concerned an Estonian Male Prison Officer, who developed some difficulty in auditory acuity, and I quote from the Press Release

The Estonian Legislation imposing an absolute bar on a prison officer remaining in employment when his or her hearing acuity does not meet minimum standards of sound perception without it to be ascertained whether that Officer is capable of performing his or her duties is contrary to EU law.

That legislation amounts to direct discrimination on grounds of disability

Irish Prison Service v Robert Cunningham and the Labour Court [2021] at the Court of Appealfollowed a case of a Prison Officer with a number of back injuries who sought work without prisoner contact and claimed refusal to grant reasonable accommodation. Counsel for the Respondent, in referring to Cunningham and the meaning of section 37(3) of the Act, again referred to the distance between the complainant and a declaration and fitness for duty so as to negate any grounds for application of Section 16 of the Act.

I could not identify a clause in the complainants’ terms and conditions which embraced section 37(3) of the Act.

37 (3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.

I am bound to submit a decision as an Independent Adjudicator at first instance on the particular facts of the case before me. I intend to complete that task on the evidence before me.

The Respondent has relied on the complainant being cast as an essential worker from March 2020.

I was not provided with any confirmation of that status, and I accept Counsel for the Complainants point that this category of worker is not provided for in the Directive 2000/78 or the Act. Instead. I saw an extract from a Respondent internal record which identified Administration as an essential service, but did not name the complainant per se.

 I also saw an extract which recommended that some workers, not deemed essential

“Employers should take steps to support social distancing measures including remote working, full staggered shifts and flexible working hours in order to support and maximise social distancing whilst ensuring business continuity “

This, for me, at least suggests an essence of existence  of remote working at the Respondent service which contrasted with the references made to isolated incidents.

It must be remarked that this was a time when being based at home was the rule and not an exception due to covid and Public Health warnings.

Government Depts were to identify specific individuals required to manage essential work. As the complainant was absent on sick leave during this period, I am satisfied that she was placed outside of this cadre and find that the Respondent cannot safely rely on this argument of exception and exclusion as reflected in the series of refusals to grant reasonable accommodation on March 27 of March 31 and subsequently.

I reviewed job descriptions submitted by the Respondent, but I could not safely determine that the complainant was a static based worker. Instead, her location was deemed to be as directed by the respective Minister, which implies a mobility clause

 Governor A said no one from Cork prison has worked from home during or post covid. The examples led by the Complainant referred to pregnant staff who availed of Health and Safety leave and Long ford HQ and Management. She also cited staff from whom the Prison service supported in illness /disability.

It is common case that the complainant is employed as a Manager and the March 2020 circular extract did reflect that Managers were permitted some lea way in home working.

It is not for me to conclude that the Respondent was bound to accommodate the Complainant with her request for home working  as that would be a completely inaccurate application of the case law referred to above.

 Instead, I can safely conclude that the Respondent was obliged to “try at the very least “to explore the circumstances and conclude if “on reasonable accommodation “ and through “ appropriate measures “ the complainant could undertake her duties. Nano Nagle applied.

I have had regard for the Labour Court Decision in HSE v Hannigan EDA 13/2020 on pay for shorter working hours made on reasonable accommodation. This demonstrates a balance in the reality of work following reasonable accommodation .

I had some unease in the delay in referring the Complainant to Occupational Health, Department notwithstanding the provision of circular 5/2018 on sick leave in excess of 28 days and the complainants own request to be referred. I found the July appointment very late. I appreciate that there was a covid related delay as CMO had ceased new referrals and there was a “glitch “on the time recording system

However, in a careful review of the referrals to the CMO, I found a distinct unease in the composition of the referrals that I have a high level of disquiet about.

The first referral was dated July 1, 2020

The referral was not discussed with the complainant. Four Questions were posed directed at medical advice

1 Were there likely to be ongoing sequalae

2 Was the Complainants condition likely to deteriorate

3 future Prognosis

4 Any accommodation on the complainants returns to work and for how long

The referral was notable by its omissions. The CMO Report reflected that he/she had considered an email from Ms O’Connor, yet the email incorporated on the referral reflected March 30 application for working from home.

I observed that the “cut and paste “version omitted “I am now quite worried as to how long this situation is going to last in addition to the entire last quarter of the letter on  just how the complainant proposed to manage her return to work through revision of jobs.

I found this a careless omission  and excessive editing ,when balanced against  a complete incorporation of the respondent response. I found this regrettable and for me contributed to a pre-determined outcome. I could not identify a culture where reasonable accommodation was being considered .

While I have some reservation in addressing subsequent CMO referrals as they post date the lodging of the WRC complaint, I have regarded the events as continuance for the purposes of my investigation.

The referral of 15 September 2020 was more concerning as it recorded that the complainant had taken a case to the WRC on not being allowed to work from home and was amended by “unfortunately, working from home is not an option for prison-based staff “Advice was then sought on whether the complainant was fit for duty at the Prison?.

I found a defined fragmentation between human resources and OHD where an employee taking a case to the WRC found its way onto  an OHD referral, when the complainants own suggestions on how she could have managed her workload at home were not .

I have taken some time to think about the sequence of supportive occurrences in this case and yes, I have been very encouraged by the prompt release and support of CIP and access to the counselling service. I found that the Respondent was comfortable in the role of administering support in that regard. However, I found very little corporate knowledge of reasonable accommodation in a work setting as both Governor A was certain a risk assessment had been conducted on the complainant’s condition and Mr Z was very clear on the parameters of the accommodation Policy 2014.

However, I am struck by “a spanner “approach to the Complainants attempts to apply for covid 19 leave. There was no visible administrative framework around that, no form, no process. Instead, the Complainant seems to have applied through the EAP with no transparency or traceability. I fully appreciate that this amounted to an embryonic leave, but surely the application system should have been given to the complainant to navigate herself. I found this to be less favourable treatment ..

I have found a procedural containment around the referrals to the Occupational Health department, which go some way to explaining the complainant’s stated confusion at hearing that this Dept seemed unaware about her sick leave.

However, if I am to apply Nano Nagle to the facts of this case, and I must, I have found a defined vacuum in what measures the Respondent undertook in this case. For me , they fell a long way short of “ appropriate measures “ set out in law .

I cannot accept the argument made by the Respondent that as the Complainant was not declared well and fit to return to the static workplace of the prison, she was excluded from the provisions of the operation of Section 16. Mr O, no 1 addresses this point. The Respondent is clearly awaiting an outcome in Cunningham . However , I must press on with this case for now .

I was curious as to whether the Accommodations Policy dated 2014 would provide for a consideration of Reasonable Accommodation.?  The Respondent witnesses expressed a confidence that it would. It did not. This well  drafted Policy addresses activation post illness or injury , but is silent on disability .

I was curious as to whether Circular 05/2018 would provide for a consideration of Reasonable Accommodation.? I found it did in Section 4.4

I quote in full

Where an individual attributes poor attendance to a medical condition, consideration must be given as to whether that individual may have a disability as defined under Employment \Equality legislation. HR Managers must consider their obligation s under the Employment Equality Acts 1998 to 2015 to provide reasonable accommodation, to ensure that individuals with a disability can participate in and advance at work

Examples of reasonable accommodation are:

1 making adjustments to premises and /or working space were reasonably practicable

2 allocating minor or subsidiary duties to another officer

3 altering working hours/reduction in hours

4 changing the location of work

Providing a period of rehabilitation

Offering additional training

Acquiring relevant equipment or modifying existing equipment

This circular directed at all Civil servants was effective from 31 March 2018 and did not carry an exemption for the Prison service

Mr Z was clear that had the complainant been deemed well, the respondent would have been more than prepared to accommodate her return to work via a compiled business case approach. However, as I have already expressed, I found that the Respondent omitted key considerations from its own partisan OHD referral. It is unclear to me just how the Complainant could secure a declaration or certificate of wellness to match that of her GP when faced with the blanket ban for offsite work.

I have found that the Respondent did not follow the helpful findings in the Supreme Court in Nano Nagle.

I found that by placing a “blanket ban” on working from home, that the Respondent failed to attempt at least to reasonably accommodate the complainant. Nobody undertook a risk assessment of this or evaluated any of the duties/tasks suggested by the Complainant. Nobody measured the fear that intensified for her on the evolution of Covid. It may well have transpired that working from home was not the panacea first thought by the complainant , or perhaps that a compromise on hours/ duties could have been struck up , but this proposal deserved consideration and measurement . That’s was the presiding legislation says .

I appreciate that Governor A considered the suggested changes in the way the complainant’s role could be executed but deemed them unworkable. However, this was not objectively measured, discussed, consulted on or evaluated either by trial or pilot or any exploration. I understand that a Prison has operational concerns for security and there was no certainty that anything the complainant suggested could have worked in accordance with the provisions of Section 16(3)

I find that the Respondent cannot rely on the defence of disproportionate burden as they did not cost the proposed change or meaningfully examine the concept of the proposal’s” possible remote work duties “I find that the Complainant got lost in this process. she was not seen behind the veil of “no “her capacity to triumph over her impairment and ascend the “ramp “was not realised and this is disappointing and more importantly contrary to the provisions of Art 5 of the EU Directive and Section 16(3) of the Act.

I fully accept that the Respondent was not bound by a Direction to accede to the Complainants request for accommodation, but they were bound to try rather than rest on the “boulder “of “no “which resulted in a “house arrest situation “for the complainant and the absence of a key staff member for the Respondent. For me, she was denied the opportunity to participate in a work setting which had an adverse effect on her.

 I could not establish a contractual term or relevant workplace policy that prohibited at the very minimum a discussion on how the complainant could return to work. Section 4.4 of Circular 05/2018 had relevance in her case and was not considered by the Respondent.

I conclude that the complainant was denied reasonable accommodation by the Respondent in contravention of Section 16 of the Act.

CA- 00049915-002 Penalisation complaint

Section 27 of the Safety Health and Welfare at Work Act, 2015 addresses

Protection against dismissal and penalisation.

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), 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 of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

( e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

( f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

The Labour Court considered the claim for penalisation in the case of dismissal of a Hairdresser in Toni and Guy Blackrock v Paul O’Neill [2010] 21 ELR 1. They developed the test to be applied in determining whether the Complainant had made out a necessary causal link between detriment and the protected act.

In her in-depth article Penalisation Pursuant to Section 27 Safety Health and Welfare at Work Act, 2005 IELJ 2014, 11(1) Sarah OMahony BL, emphasised that the Court held that it is necessary for a claimant to establish that the detriment complained of was imposed “because of, or in retaliation for “the employee having taken a protected act. This can be summarised as the “but for test “

This has been the argument relied on by the Respondent.

I have identified an overlap in the composition of both complaints before me that places this second issue within the parameters for consideration of “Issue Estoppel “in terms of a remedy.

The facts of both cases are at one.

I accept that the Complainant applied for a reasonable accommodation on March 26 and many occasions later. However, by the date of this complaint, i.e., June 15, 2020, she was on full pay, supported by the Respondent.

I have not identified a detriment in this matter.

The claim is not well founded.

Decision:

Dated:   16th August 2022

Workplace Relations Commission Adjudication Officer:  Patsy Doyle

Key Words: