Complainant

Respondent

Parties

Constantin  Garstea

O'Brien Fine Foods Unlimited Company

Representatives

Terry Gorry & Co Solicitors

 Alastair Purdy & Co. Solicitors

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-00039576-001

03/09/2020

The complainant had been on long-term sick leave due to an injury and was seeking reasonable accommodation or alternative employment.

The complainant was suffering from back pain approximately two years from the date he commenced employment with the respondent and, having consulted his GP, he told the respondent that the demands of his work were too physically demanding on his spine.

There was also riskthathewouldsufferfurthercomplications.

Despite this, the respondent made no attempt to accommodate him by making less physically demanding work available. As a result, he was unable to return to work.

On August 18th, 2019, the respondent's HR Manager met the complainant regarding his absence from work and said that she had arranged an occupational health assessment which he duly attended.

This found the complainant was fit to resume a return to work but with severe restriction on the weights he could lift; it was recommended that he be excused from lifting greater than 9.1 Kg intermittently, and greater than 4.5 Kg frequently.

On September 23rd, 2019, the complainant had an MRI scan and consulted a neurosurgeon who advised that he could not continue at all in the same role as problems with his back would lead to a prolapse, cause impact on his spine and necessitate surgery.

On October 3rd, 2019, the respondent met the complainant again regarding his absence from work. At this stage the disparity between the two medical reports emerged and the respondent requested a copy of the later one, which the complainant provided on October 10th.

He heard nothing further from the employer until January 2020.

On May 28th, 2020, the respondent called a further meeting with the complainant regarding his continuing absence from work.

The complainant advised that his medical condition remained much the same but also drew attention to the fact that he had been out of work since July 2019 and was suffering from the loss of income. He added he would be happy to return to work in the packaging store and carry out his old role, save for the obligation to lift heavy loads.

Alternatively, he would be happy to take any other position available in theworkplace.

The response was that the role in the packaging store required theliftingofheavyloadsandtherewerenosuitablejobopportunitiesatthattime.

This surprised the complainant as he had recently been awarded a further third-level degree (Bachelor of Business Studies) and would have been capable of a wide range of tasks, provided they did not involve for heavy lifting.

The complainant attended a second occupational health assessment on February 11th, 2020 which found him unfit to return to work, unless a more ‘sedentary role’ could be found for him.

Throughout the period the complainant applied for a number of other jobs with the respondent but despite, in his view being as well, or more qualified that the those appointed he was not successful.

He resigned from his job on September 1st, 2020.

This is a complaint under Employment Equality Acts, and a complainant must establish a prima facia case. This requires them to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them.

The complainant has failed to establish the existence of a prima facie case in accordance with Section 85A (1) of the EEA and the requirements of the decision in Melbury v Valpeters EDA/0917, where it is stated that this section.

“Places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

In other words, assertions cannot be mere speculation or unsupported evidence.’

The complainant’s submission refers to various of his co-workers who were successful in relation to appointments for which he thought he was suitable. But in all cases those appointments were made on merit and the complainant was not offered those roles because there were stronger candidates

This had nothing to do with his underlying disability.

The respondent further notes that the selection of other candidates for an advertised role, for whatever reason, does not constitute a breach of reasonable accommodation.

The complainant submits he received no further information on “vacancies” from HR from February 6th, 2020, onwards.

In fact, this practice ceased due to inconsistency in its application to staff members and for data protection reasons, following several data breaches.  For that reason, the fact that no further vacancies were issued to the complainant had nothing to do with his disability; but related to a change in internal practices.

The complainant was offered the opportunity to upskill by way of some administration work at reception every Friday. This would have allowed him to gain experience and become a more suitable candidate for available roles in the future. However, he declined this opportunity.

Regarding reasonable accommodation. the dicta cited in Nano Nagle as follows are relevant:

(1) there is no requirement on the employer to find another distinct and separate job for an employee with a disability and

(2) there is a requirement on employers to explore alternative modes of accommodation to establish if the position held by the employee with a disability is capable of adaptation to accommodate that employee.

Critically McMenamin J. also observed in Nano Nagle that the Court must satisfy itself that, if there had been a reasonable accommodation, the complainant would have been capable of performing the functions of the job.

In addition to the above, in looking closely at the Supreme Court’s decision in Nano Nagle there are a few key points to note.

It was confirmed that Section 16 (1) should first be considered by the employer, meaning an assessment of the employee’s duties should be completed and thereafter determine whether, upon reasonable accommodation under Section 16 (3), the employee could be “fully competent or capable of undertaking the duties”. 

Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability, provided the reasonable accommodation does not impose a disproportionate burden on the employer.

Subsection (3) (b) explicitly identifies the mandatory primary duty of the employer to take appropriate measures where necessary to enable a disabled person to have access to employment.

Appropriate measures are defined under Section 16 (4) as including effective and practical measures, where needed in a particular place, to adapt the place of business, including premises, equipment, patterns of working time, distribution of tasks or provision of training or integration resource. It does not include any treatment facility or thing the person might ordinarily provide for himself or herself.

The duty of accommodation is not infinite. It cannot result in removing all the duties which a disabled person is unable to perform. This would represent a disproportionate burden. In other words, to create a new role - would place a disproportionate burden on the employer.

The Supreme Court helpfully provide a useful example in that regard.

“The principal flute in the symphony orchestra becomes disabled through an accident and was in a wheelchair. She is still a brilliant flautist with a golden tone but, to get on stage, she needs a ramp. To go on tour, a hoist or other measures are needed to get her on the bus. To be fully comfortable, a disabled toilet needs to have easy access to the ladies dressing room in the rehearsal venue or concert hall. These are what the legislation refers to as appropriate measures; if the disability is such as to destroy memory or concentration or ability to play at the top level, then as a matter of humanity, the employer may consider if it is possible to reassign. That is not a legal obligation. If the ability to be, as the Act says, “fully competent”, with “reasonable accommodation” is not there, then there is no discrimination according to the legal definition if the person cannot do the work.”; The terms of Section 16 are mandatory - placing a duty on the employer to show that they carried out the process of reasonable accommodation and objectively given the question of redistribution full consideration. Whilst the duty to consult an employee is each case is not mandatory - “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.

Critically the absence of consultation alone is deemed not to constitute discrimination.

The Supreme Court reiterated the principle in Humphries v Westwood Fitness Club, Dunne J [2004] 15 ELR 296 whereby the Labour Court held for the employer to form a bona fide belief that the employee was not fully capable of performing the duties for which she was employed, an employer would normally be required to make adequate enquires to establish fully the factual position in relation to the employee’s capacity.

The Court held that the nature of these enquires would depend on the circumstances, but would, at a minimum involve looking at medical evidence to determine the level of impairment arising from the disability and its duration.

The respondent rejects the notion that Section 16 (3) of EEA was required to be complied with during the complainant’s employment. A fact conceded by the Complainant, he was unfitted to satisfy his contract either in whole or part.

The crux of the role concerned manual handling. Thus, no redistribution could take place in respect of his duties. In accordance with Section 16 and the reasoning by Nano Nagle, subsection 3 does not arise in circumstances where the individual, regardless of reasonable accommodations, could not be “fully competent” to complete the work he was employed to do.

To do otherwise, would materially alter the role entirely, placing a disproportionate burden on the respondent.

In recent years since n recent years since Nano Nagle, several decisions addressing this issue have been issued by the Workplace Relations Commission and Labour Court.

In An Employer v A Worker EDA216 31/03/21, the Labour Court held that it was not possible to adapt the complainant ’s duties to accommodate him as the facts demonstrated that he was “incapable of performing that function thus adapted” as no amount of support was going to assist him if he found himself on his own, which was always a possibility in his role as Care Assistant.

This case involved a care assistant who was unable to provide intimate care to patients which was a requirement for all such posts.

 In the case of A Customer Care Advisor vs An Insurance Company ADJ-00016629 7/05/20 the complainant was a call adviser and began to lose her voice two years into employment.

Having been assessed by a speech and language therapist, it was confirmed that she could not do telephone work anymore. In response, the respondent offered the complainant respite and paid leave to allow him time to find alternative work.

The complainant tried to argue that the respondent should have allowed her to move department or facilitate her with different work within her current department.

The respondent maintained that the complainant was medically unfit to work.

In its decision, the WRC held that the respondent had not failed to provide reasonable accommodation, with the adjudicator stating, “I am satisfied that it is reasonable to conclude from the evidence adduced that the complainant is no longer able to perform the essential and necessary duties of the job in respect of which she was employed.”

The essential facts of the case are set out above and are largely agreed.

In 2019 the complainant, who was employed as a general operative was injured at work.

In August 2019 he was certified as fit to return to work but with severe restrictions on the weight he could lift, such that he would not have been able to carry out his role.

In September he saw a specialist who essentially certified that he could not carry out at all the role for which he was employed.

His complaint is that he sought reasonable accommodation provisions in order to return to work but was told that this was not possible as the job could not be performed on the basis of the severe weight restrictions initially proposed, or re-organised to enable him to do so, a fact confirmed at the hearing. 

In any event, and somewhat critically for the complaint, and indeed in another sense for the complainant, he received a further medical assessment within a few weeks of that first (on September 23rd) which foresaw very serious consequences for him if he returned to the position on any basis.

This was later provided to the respondent at their request.

It might be said that the clock stopped ticking at this point in relation to any requirement to finding reasonable accommodation. The clear medical evidence from a consultant surgeon was that the complainant was unconditionally unfit to return to work within a timeframe of about a month.

The following February there was a second occupational health report which again confirmed the complainant’s unfitness to return to work.

In the meantime, the complainant adopted another approach and sought other vacancies within the respondent company, quite separate and different to the role for which he was initially employed.

In February the complainant was also advised that he had not been successful for an administrative role. In the course of the following weeks, he expressed an interest in other vacancies.

He was not successful and told that other candidates were better qualified.   He says however that co-workers were offered positions without qualification and that he had good qualifications and was a third level graduate.

But these are competitive processes and an applicant is not always best placed to assess their own qualifications for a position vis à vis other applicants.

Eventually he was advised that his job was at risk on the grounds of incapacity and in due course he resigned before that process concluded.

It was very clear from the submissions that the complainant’s sense of grievance significantly derived from his disappointment at the failure of the respondent to find him alternative employment and much time and space was taken up on this point in both the submissions and at the hearing.

However, this is different to a complaint under this statute or to the issue of reasonable accommodation.

It is clear that from September 2019 onwards the issue of reasonable accommodation was not on the agenda.

I accept the submission above from the respondent on this point where it is noted.

It was confirmed that Section 16 (1) should first be considered by the employer, meaning an assessment of the employee’s duties should be completed and thereafter determine whether, upon reasonable accommodation under Section 16 (3), the employee could be “fully competent or capable of undertaking the duties”. 

Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability, provided the reasonable accommodation does not impose a disproportionate burden on the employer.

Subsection (3) (b) explicitly identifies the mandatory primary duty of the employer to take appropriate measures where necessary to enable a disabled person to have access to employment.

The installation of ‘appropriate measures’ to render a person fully competent to undertake the role for which they are employed is an entirely different matter to, for example, accommodating a worker in an entirely new position, which was what the complainant was really seeking, as can be seen from his own submission.

The only period in which this was even open to consideration was between the first medical assessment in August and late September when the consultant opinion was secured. Thereafter, the complainant was certified totally unfit for the work for which he was contracted, and the issue of reasonable accommodation did not arise.

I find that any failure to provide the complainant with alternative employment, while regrettable from a general and human point of view, especially given the complainant’s increasingly straightened circumstances does not give rise to any liability under the Act.

(I note the Decision of the Court of Justice of the European Union in a case involving HR Rail, the Belgian State Railway, Case C-485/20 which may have a bearing on the consideration of such options in the future, but it was issued on February 10th, some time after the hearing of this case).

The complainant has not therefore established a prima facie case and the complaint is not well-founded.

For the reasons set out above Complaint CA-00039576-001 is not well-founded.

Reasonable Accommodation. Alternative Employment