Complainant

Respondent

Parties

Annmarie  Griffin

St Patricks Centre Ltd

Representatives

SIPTU

Ibec

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-00033827-001

16/01/2020

The Complainant works as a Social Care Work with the Respondent organisation.  The Complainant alleges that the Respondent has failed to provide her with reasonable accommodation in relation to her disability.

The Complainant submits as follows:

The Complainant submits that she was subjected to discriminatory treatment in her terms and conditions of employment by the Respondent on the grounds of her disability, contrary to section 6(2)(g) of the Employment Equality Acts 1998 – 2008. The Complainant also claims that the Respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with Section 16(3) of the above Acts.

In 2014, the Complainant was diagnosed with a serious long-term condition for which she is receiving treatment. This condition does not impact on her ability to carry out her contracted hours of day duty. However, the Respondent is attempting to roster the Complainant for night duty which has a serious detrimental effect on her because of her illness. The Complainant contends that the Respondent failed to afford her reasonable accommodation in relation to her illness. The Complainant further contends that the Respondent discriminated against her in the conditions of her employment.

The Complainant worked for approximately 9 years on days and only did occasional night duty in 2018 to accommodate the Respondent. In March 2019, serious health issues arose for the Complainant following a shift on night duty. The Respondent was informed and a medical cert from the Complainant's GP was received on 23 March 2019 in which the GP requested that the Complainant be excused from night duty on health grounds.

On 23 September 2019, another letter from the Complainant's GP was sent to the Respondent outlining her condition and asking that her request to be excused from night duty would be looked at favourably.

On 2 October 2019, the Complainant was reviewed by an Occupational Health Consultant at the Respondent’s request.  The subsequent report recommended that it would be preferable if the Complainant were to be accommodated off night duty.

A meeting was held on 14 October 2019, to discuss the Complainant's sick leave and the occupational health report. There were discussions about the request to be reasonably accommodated with an exemption from night duty in consideration of her medical condition.

On 14 November 2019, the outcome of the meeting of 14 October 2019 was issued to the Complainant.  The request from occupational health and her GP to accommodate her by removing her requirement to work nights was refused.

The decision was appealed, and the appeal meeting was held on 10 December 2019. The appeal was not successful.

The Complainant continued to workdays until April 2020, when she was rostered for night duty and was hospitalised shortly after finishing night duty. Her Team Lead then decided that she was more beneficial to the house on day duty, and this was brought to the attention of the ADON and the Complainant was told that "she agreed that [the Complainant] stay on day duty until the WRC hearing".

In September 2020, the Complainant was sent details by HR of a job in a personal support role which would not require her to work nights. It is the Complainant’s contention that the position offered would be a demotion and would result not only in a loss of status but also a significant pay cut. The Complainant declined to take up the offer to apply for the position.

The Complainant was included on a roster for night duty in October 2020 which was due to commence on 2 November 2020. The result of being put on that roster meant that the Complainant was covering the work of a colleague i.e. relief staff and would have potentially have had to work 44 hours in one week. The Complainant has a 30.5-hour contract.  The Complainant was given a night off and worked 33 hours.  SIPTU wrote to the Respondent on 12 October 2020, to convey its understanding that the Complainant would remain on day duty pending the outcome of the WRC process.

The Respondent replied on 14 October 2020, stating that there was no agreement from the ADON that the Complainant would remain off nights and that she would be required to work night duty as per the roster. The email also stated that the Complainant could work night duty under protest.

SIPTU responded on 14 October 2020, stating that the Complainant disputed the Respondent’ position and also pointing out that a colleague was willing to cover the night duty to allow the Complainant to workdays. 

The Complainant was reviewed by the Respondent’s Occupational Health Consultant.  By report dated 14 May 2021 he opined that:

“Based on the history and report from her consultant, I would recommend that [the Complainant] avoid nights where possible.  If it is not possible to avoid them completely, they should be kept to a minimum”.

A meeting took place on 13 July 2021 between the Respondent and the Complainant to discuss the contents of the Occupational Health Consultant’s report.  Details of the nights she would be requested to work were emailed to the Complainant on 15 July 2021.

By email of 20 July 2021, the Complainant queried how often the night hours would be reviewed and what would occur if her health deteriorated.  The response she received was:

 “We are guided by Occupational Health. This Agreement will be reviewed yearly sooner if required regarding minimum nights”.

At this particular time the Complainant was actually on Carer’s Leave to care for a terminally ill family member in her own home.   The Respondent was aware of this, yet it emailed the Complainant in relation to the matter.  The Complainant requested more time to consider the matter.

On 29 July 2021, the Complainant notified the Respondent that she did not agree with the minimum nights being proposed and advised that she would be working the night duty under protest until the outcome of the WRC process.

The Complainant contends that the Respondent's treatment and attitude towards her was discriminatory. No cognisance was taken of the fact that the Complainant is suffering from a long-term illness. The debilitating effect of night duty on her condition is well documented, yet the Respondent choose to ignore the medical advice from both her GP and their own Occupational Health doctor.

The Complainant contends that the Respondent failed to consider all of the options open to it and thereby failed in its duty to provide reasonable accommodation to the Complainant by not granting her request around her working hours. The Complainant contends that the Respondent's treatment of her constitutes discrimination on the grounds of disability.

The Complainant relies on the following precedents:

Finanzam Koln-Alstadt v Schumacker Case C-279/93 [19951 E.C.R 1-225]; A Health and Fitness Club -v- A Worker EED037 upheld by the Circuit Court (Humphreys v Westwood Fitness Club [20041 E.L.R 296) and Daly v Nano Nagle.

The Respondent submits as follows:

The Complainant commenced employment with the Respondent on 11 February 2000 as a healthcare assistant.  Following a recruitment campaign, the Complainant was promoted to the role of Relief Social Care Worker in 2015 with a further promotion to her current role of Social Care Worker on a contract of 30.5 hours per week with effect from 26 April 2017. While primarily working day hours, the Complainant worked nights on numerous occasions.

In September 2019, the Complainant requested to stop working nights and remain on permanent day hours due to an underlying medical condition.  A review by the Respondent’s Occupational Health Consultant took place on 2 October 2019.  In his assessment, the Occupational Health Consultant reported as follows:

“While her underlying medical condition is not a contraindication to doing night work, it would appear based on the history and the report from her GP that there is an association between doing nights and an exacerbation of the symptoms of her underlying medical condition.  As such it would be preferable if she could be accommodated off nights.”

The Complainant was deemed fit to return to work per her GP with effect from 19 October 2019 “….on day duty only”.

A meeting took place with the Complainant on 5 November 2019 regarding her issue of night work.

The Respondent wrote to the Complainant on 14 November 2019 in relation to the Complainant’s request not to work nights as follows:

“Although we sympathize with you and regret your health implications, we have given extensive consideration to your request as a ‘reasonable accommodation’; however, [the Respondent] have also received a number of requests for similar accommodations and unfortunately at this point in time, do not have the luxury of spare capacity for day roles within which you could sit, and to adhere to your request at this time would place a disproportionate burden on the service and therefore regrettably [the Respondent] is unable to facilitate your request to work only day duty in [the Respondent organisation] at this time.

 However, [Complainant] should [the Respondent organisation] circumstances change in the future we will review your case on an individual basis.”

The Complainant appealed this decision by email on 19 November 2019.  An appeal hearing took place on 28 November 2019. Following this meeting, the Respondent wrote to the Complainant on 12 December 2019 refusing her appeal as follows: 

“Due to the increasing regulatory service demands together with our new service model (in line with service reform and national policy) ie community based setting; [the Respondent] must maintain safe levels of staffing at all times across 24hours service-wide; this necessitates the majority of the workforce working both days and nights.  Approving your request for a ‘day shifts only’ would place a disproportionate burden on the service that cannot be facilitated at this time; in this context, I advise you that your appeal is not upheld. 

Should [the Respondent’s] circumstances change in the future we will review your case on an individual basis.”

A complaint was submitted to the WRC on 16 January 2020.   At the direct request of the Complainant’s union representative, and while this matter was in dispute, the Complainant completed very little night duty.

Following the postponement of the adjudication hearing on 5 May 2021, [the Respondent] arranged for the Complainant to be further reviewed by its Occupational Health Consultant.

In his report dated 14 May 2021, the Occupational Health Consultant’s opinion was as follows:

“Based on the history and report from her consultant, I would recommend that [the Complainant] avoid nights where possible.  If it is not possible to avoid them completely that they are kept to a minimum.”

By email dated 22 June 2021, the Respondent sought clarification from the Occupational Health Consultant on the night hours that the Complainant could undertake as it was not possible to roster her off night duty completely.  The following query was put to the Occupational Health Consultant:

“The proposal for [the Complainant] would be to cover night duty as follows taking in account her contracted hours are 30½ hours per week:

·       QTR 1-  1st January to March 31st, 1 working week (either 3 or 4 nights)

·       QTR 2 & 3-  1st April to 30th June and 1st July to 30th September 2 working weeks + two nights

·       QTR 4-  1st October to December 19th, 1 working week (either 3 or 4 nights)

We would welcome your comments on the above regarding Night duty.”

In his response dated 28 June 2021, the Occupational Health Consultant stated:

“If this is the minimum number of nights you can accommodate then I'm satisfied she's fit for same.”

On 13 July 2021, a meeting took place between the Respondent and the Complainant to discuss the medical report from the Occupational Health Consultant.  

By email dated 20 July 2021, the Complainant queried how often the night hours would be reviewed and what would happen if her health was impacted by working nights.  In a response on the same day, the Complainant was advised:

“We are guided by Occupational Health.  This agreement will be reviewed yearly sooner if required regarding minimum nights.”

Due to personal circumstances, the Complainant asked if she could have some time to consider her position.  It was agreed to allow her until 31 July 2021.

By email dated 29 July 2021, the Complainant advised Management that she did not agree with the minimum nights being proposed.  When this was queried with her, she responded:

“I will be working night duty under protest until the WRC outcome.”

The Complainant is not being asked by [the Respondent] to undertake night duty that is in excess of what has been approved by the Occupational Health Consultant, hours he has deemed her medically fit to undertake.  The Respondent has also agreed to review this arrangement on an annual basis or, if required, more frequently.  These reviews will take place in conjunction with the Occupational Health Consultant.

The Complainant alleges that she was discriminated against due to disability and failure to provide reasonable accommodation.  The Respondent refutes the claim of discrimination.  The Respondent has never been provided with a medical report from the Occupational Health Consultant stating that the Complainant cannot undertake night duty. The Complainant is seeking reasonable accommodation which the Occupational Health Consultant has not deemed necessary.  The Respondent submits, therefore, that the Complainant has failed to establish a prima facie case of discrimination which would allow the burden of proof to be shifted to the Respondent.  The Respondent strongly submits that he Complainant in her complaint has failed to discharge the burden of proof required in equality cases and consequently, the herein claim cannot succeed.

Notwithstanding the above, the Respondent has previously attempted to accommodate the Complainant.  While there are currently no day only social care workers, they were able to offer her the role of Personal Supporter.  This is a healthcare assistant role and would have been for day only work. This offer was rejected by The Complainant.

The Respondent has made a commitment to the Complainant which it will honour.  To date the service has been able to facilitate primarily day only hours while this matter is in dispute, at the request of her union.  This facilitation is due to the additional work created because of the Covid-19 pandemic.  She has suffered no loss.  In the meantime, other staff have come forward seeking day only contracts due to medical reasons and it had not been possible to facilitate them.

The Respondent has committed to the Complainant it will review this matter should the Respondent’s circumstances change.  Anything other than this would create a disproportionate and unreasonable burden on the Respondent.

The Respondent relies on the following precedents:

Humphries V Westwood Fitness Club [2004] ELR 296; Mary Margetts v Graham Anthony & Company Limited [EDA 038; 7 August 2003]; Southern Health Board v Mitchell, DEE011, [2001] ELR 201; and, Melbury Developments v Arturs Valpetters [EDA0917],

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". 

The first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person;”

The definition of a disability has been interpreted in an extremely broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt BoligselskabC-335/11 and C337/11  where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”

The Complainant advised the hearing that she is a person with a disability.   The Complainant advised the hearing that she suffers from diverticulitis and that her condition is exacerbated when she works nights.  The Complainant was unable to provide any medical evidence which states that she is suffering from diverticulitis.  I do note, however, that the Complainant submitted a medical certificate from her GP dated 20 March 2019 which stated that the Complainant gets flare up when she works nights.

I also note that the Respondent referred the Complainant to an Occupational Health Consultant in in October 2019 and in May 2021.  Following his review of the Complainant on 13 May 2021, the Occupational Health Consultant wrote to the Respondent as follows:

“Based on the history and report from her consultant, I would recommend that [the Complainant] avoid nights where possible.  If it is not possible to avoid them completely that they are kept to a minimum.”

Subsequently, the Respondent raised a query with the Occupational Health Consultant on 22 June 2021 and asked for his opinion on its proposed allocation of night duty to the Complainant. 

The Occupational Health Consultant replied on 28 June 2021 that “if this is the minimum number of nights you can accommodate then I’m satisfied she’s fit for same.”

I am of the view that the opinion of the Occupational Health Consultant dated 28 June 2021, effectively deprives the Complainant of persuasive medical evidence to support her request not to work nights.

In such circumstances I am satisfied that the Complainant has failed to establish a prima facia case of discrimination on grounds of disability.   Accordingly, I am satisfied that the Complainant was not discriminated against by the respondent on grounds of disability or in respect of a failure to provide reasonable accommodation for a disability.

In reaching my decision I have taken into account all the submissions, written and oral that were made to me.

In accordance with section 79 of the Employment Equality Acts, 1998 – 2015, 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 decide 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 declare this complaint not to be well founded.          

Employment Equality Acts, 1998 to 2015 – Disability – Section 16 - Reasonable Accommodation – Appropriate Measures