FULL RECOMMENDATION
PARTIES : ROTUNDA HOSPITAL DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00025438. Ms. McNally, ‘the Complainant’ was employed by the Rotunda Hospital, the Respondent’ in an administrative capacity. Her salary was €48,944 p.a. This case is her appeal of a Decision by an Adjudication Officer, ‘AO’, that a complaint against the Respondent under the Employment Equality Act, ‘the Act,’ was not well founded. On 20 May 2019, the Respondent notified the Complainant that, on the basis of medical advice, she was being retired from the employment on grounds of permanent disability. The Complainant lodged a complaint under the Act on 19 November 2019 to the effect that she had been discriminated against, contrary to her rights under the Act, on grounds of disability. The Complainant appealed the AO decision to this Court. The Court dealt with preliminary matters of jurisdiction in Case Number EDA2148. Specifically, the Court determined that matters which arose on 20 May 2019 were within the cognisable period and could be determined by the Court. Matters that formed part of the complaint alleging breaches of the Act prior to that date were deemed by the Court to fall outside of the cognisable period. The Court identified that the complaint referred to matters occurring on that date as alleged direct discrimination, harassment and a failure to provide reasonable accommodation. In addition, the Complainant brought to the Court’s attention that she had raised a complaint of victimisation. It was accepted that this matter had been included in the original complaint and the Court agreed to hear the parties on this matter also. Summary of Complainant arguments: As the Court noted in the previous Determination, the Complainant provided the Court with voluminous amounts of material. The Court provided the Complainant with the opportunity to summarise this in a verbal submission. This summary of arguments is an attempt to capture this verbal presentation. The Court read, and took account of, all material received, where relevant. Direct Discrimination: The Complainant does not have a disability. There is no evidence to support this claim. The medical report from the Respondent’s medical advisor on which the decision to enforce retirement is based is a ‘belief’ and not a diagnosis. The Complainant’s GP certified her as fit for work. The Respondent did not assess or review the ability of the Complainant to do her work and cannot substantiate a claim that she is unable to do so. The Respondent did not use their performance management system, ‘PPDS’, to verify the medical belief. There is no basis for the medical advisor to suggest a permanent incapacity. The Respondent imputed a disability to the Complainant and discriminated against her on that basis by notifying her of a termination of employment. Retiring the Complainant in this fashion renders it impossible for her to secure alternative employment. Harassment Although the Respondent was told that the Complainant did not have a disability, they did not take any account of this. The HR Manager was entitled to receive the report but was then obliged to assess if the Complainant was capable of undertaking her work before acting on the report. He did not do so. Rather, he gave the report to the Secretary General Manager, ‘SGM’, of the Hospital. Sending on an unverified report is harassment. The SGM letter notifying the Complainant of compulsory retirement simply transcribed the report in general, non-particularised terms. Acceptance of the report without examining the Complainant’s ability to do her job is harassment. Reasonable accommodation: The Court is referred to the case ofGlatzel v. Freistaat Bayern C-356/12,which sets out the requirements on employers in looking at reasonable accommodation in a manner relevant to this case. The Complainant was on suspension when the Respondent received the medical report, so the Respondent had no way of assessing her fitness to work at that time. The Respondent claims that there was no other post available to accommodate the Complainant. This was not substantiated and is denied. For comparison purposes, the Complainant would rely on other persons who do not have a disability but who have been assessed under PPDS. The Complainant was last assessed in 2012. The Complainant’s offer to work remotely was refused. Victimisation: The Complainant withdrew a complaint that she had been victimised due to a complaint made to the Respondent in June 2019. The Complainant raised a complaint against the Respondent in January 2019. She was suspended. In March 2019 , the Complainant made a complaint to the WRC and she was notified of compulsory retirement in May 2019. She was penalised ‘for’ having made a complaint. The medical report, on which the Respondent relies, refers to the complaint. Summary of Respondent arguments: Victimisation: The Complainant has not raised a ‘prima facie’ case. The complaint in March 2019 refers to Ear, Nose and Throat issues. It was received by the Respondent on 25 March 2019. The report from the medical advisor, Dr. Natin, was dated 21 March 2019, so it was prior to receipt of the complaint. That report identified a psychiatric illness that made it not possible for the Complainant to do her job on a permanent basis. He recommended early retirement and the Respondent acted in accordance with this advice. The chronology does not support the allegation of victimisation. The Complainant cannot establish that ‘but for’ having made a complaint she would not have been retired early. There is a chain of correspondence between the parties in March and April which shows that the Respondent was acting in accordance with its medical advice and that shows there is no linkage with the complaint. (The representative of the Respondent said that she ‘did not believe so’ when asked if the Respondent was aware of the complaint in advance of it being lodged). In any event, the medical advice was very clear in identifying that the Complainant’s condition ‘deteriorates at work’ and an email from the doctor of 13 March 2019, that predates the complaint, is very clear in diagnosing the nature of the Complainant’s illness and the disruptive impact of her consequent behaviour on other members of staff. He identified also that the nature of the illness is cyclical. With regard to the GP’s certification of fitness to return to work, the Respondent noted that Dr. Natin was clear in stating that all of the doctors agreed that the Complainant was better off not being in work. The decision to retire the Complainant on health grounds was based on the totality of evidence. The Complainant had been invited to send any further medical evidence, prior to the decision being taken, but had declined to do so. Direct Discrimination: The Court is referred to s.16 of the Act and the fact that an employer is not required to retain in employment an employee who is unfit for work. The Respondent did not impute a disability to the Complainant. The clear medical evidence substantiated that she had a disability at the time that rendered her permanently incapable of doing her job. The Respondent’s independent medical advisor provided an opinion with the benefit of the Complainant’s GP and other medical specialists. Based on clear medical evidence, the opinion given is explicit. The Complainant was afforded the chance to put forward any medical evidence to refute this opinion. She chose not to do so. Reasonable accommodation: The letter to the Complainant of 20 May 2019, sets out the chronology of events. The Respondent met the Complainant on 26 April 2019. She was invited to submit medical evidence and the deadline was extended to enable her to do so. She declined to do so. The medical evidence was clear that the Complainant was unfit for her duties. The Complainant simply refused to accept that she had a disability. While the Complainant offered to work remotely, because of the sensitive nature of patient information in her area of work, this was not possible. The medical report shows that the Complainant deteriorates at work and that her behaviour makes others unwell. She is not amenable to instruction. The situation for the Respondent was further challenging because of the Complainant’s refusal to accept that she had a disability. Harassment: There is no prima facie evidence to support a claim of harassment. Nothing in the complaint is linked to the definition of ‘harassment’ in the Act. The Complainant was not in work at the time and her ‘dignity at work’ could not have been violated. The decision regarding early retirement was based on solid medical evidence. The Respondent notes also that all complaints are based on the same set of facts. Finally, in respect of a number of arguments made, the Court is asked to note that the PPDS system was not operable for members of the Complainant’s grade at the time in question. The applicable law: Employment Equality Act 2. “disability” means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person; Discrimination for the purposes of this Act: 6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where— (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person— (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are— (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”), (b) that they are of different civil status](in this Act referred to as “the civil status ground”), (c) that one has family status and the other does not (in this Act referred to as “the family status ground”), (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”), (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”), (f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “the age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”). Harassment and sexual harassment: 14A.—(1) For the purposes of this Act, where— (a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is— (i) employed at that place or by the same employer, (ii) the victim’s employer, or (iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or (b) without prejudice to the generality ofparagraph (a)— (i) such harassment has occurred, and (ii) either— (I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment. (2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer undersubsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case wheresubsection (1)(a)applies (whether or notsubsection (1)(b)also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case wheresubsection (1)(b)applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects. 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) Insubsection (3)— appropriate measures’, in relation to a person with a disability— (a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned, (b) without prejudice to the generality ofparagraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but (c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself; (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs 74. (2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer, (b) any proceedings by a complainant, (c) an employee having represented or otherwise supported a complainant, (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, (e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment, (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. (3) For the purposes ofsections 77, 78, 83, 87and90the date on which a case is referred, or an appeal made, under those provisions is the date on which the reference or appeal is received by the Director General of the Workplace Relations Commission, Labour Court or Circuit Court, as the case may be. Redress which may be ordered: 82.—(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission undersection 79may provide are such one or more of the following as may be appropriate in the circumstances of the particular case: (a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral undersection 77(1)which led to the decision; (b) an order for equal remuneration from the date referred to inparagraph (a); (c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case undersection 77; (d) an order for equal treatment in whatever respect is relevant to the case; (e) an order that a person or persons specified in the order take a course of action which is so specified; (f) an order for re-instatement or re-engagement, with or without an order for compensation. Burden of proof: 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. Direct Discrimination: Deliberation: The various matters under appeal to the Court all relate to the same set of facts. These all relate to the letter of termination sent by the Respondent to the Complainant on 20 May 2019, in which the decision to retire her early on the basis of medical advice was conveyed. For the purposes of clarity, the complaint of a failure to provide a reasonable accommodation is a complaint of direct discrimination on grounds of disability, it is not a separate ground for a claim of discrimination in addition to any direct discrimination that might be claimed to result from such a failure. It is the Complainant’s contention that the letter advising her that she was being retired early , without an attempt to afford any reasonable accommodation, amounted to direct discrimination on grounds of an ‘imputed’ disability, (‘imputed’ as she denies that she has the disability). The Respondent , for their part, state that they acted on unambiguous medical evidence that the Complainant had a long term disability that rendered her incapable of performing the requirements of her job. Harassment: Deliberation: The meaning to be ascribed to ‘harassment’ is prescribed by s.14A of the Acts. In order to come within the statutory definition, the conduct complained of must, in the words of the statute, have: “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” The letter to the Complainant on 20 May 2019 was the result of a necessary consideration by the Respondent of the Complainant’s future employment. No evidence has been put to the Court that would substantiate a claim that its purpose was to violate the Complainant’s dignity etc. There can be no doubt that any employee receiving such a letter would be upset to do so. In this regard, it cannot be overlooked that the Respondent was acting in accordance with medical evidence and had afforded the Complainant the opportunity to provide rebuttal medical evidence but she had declined to do so. It is impossible to see what letter the Respondent could have issued to the Complainant that did not cause upset in the circumstances but it cannot be argued reasonably that, because of this fact, the Respondent ought not to have corresponded with her. The contents of the letter reflect the decision reached by the Respondent based on the medical advice received by them. No evidence was given to the Court to suggest that anything in the letter was designed to cause upset but its contents did so unavoidably. That is not ‘harassment’ within the meaning of the Act and there is no ‘prima facie’ evidence to support such a claim. Accordingly, this element of the appeal must fail. Victimisation: Deliberation: This Court offered the following observations in the case of Department of Defence v. Barrett, EDA1017; Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such“measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment” What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above). Arising from the case of Toni and Guy Blackrock v. Paul O’ Neill HSD095 the test used by the Court is the so called ‘but for’ test i.e. but for a protected act being made would a detriment have been imposed? For the Complainant to succeed in a victimisation complaint, she would need to establish that the letter of 20 May 2019 would not have been sent to her ‘but for’ the fact that she had made a complaint to the WRC on 25 March 2019. The fact that the medical advice, that led to that letter was issued on 21 March 2019, in advance of the complaint, would seem clearly to disprove such an assertion. Furthermore, and crucially, the Respondent was acting on medical advice and afforded the Complainant the opportunity to put forward her own medical evidence. As noted already, she chose not to do so. It is clear to the Court, therefore, that the letter concerned was in no way related to the complaint made by the Complainant in March 2019 and cannot be said to have been an act of victimisation. Accordingly, this aspect of the appeal must fail. Reasonable accommodation/Direct discrimination: In the judgment of the Supreme Court inNano Nagle v. Marie Daly (2019) E.L.R. 221,McMenamin J., noted as follows; ‘Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one.’ This extract from a lengthy judgment sets out clearly that the requirement on an employer when dealing with a situation where an employee has a disability is to examine if that employee’s job is capable of adaptation so that by taking ‘appropriate measures’, as per the Act, the employee can carry out the full functions of the role. This clearly requires that an employer should examine the job thoroughly and ascertain what accommodations might be capable of being made that do not generate a disproportionate burden or cost. The instant case hinges on whether the Court is satisfied that this deliberative exercise was carried out to the level required so that the Court can, in turn, be satisfied that the Respondent has met their obligations under the Act. No evidence was provided to the Court on behalf of the Respondent to show what steps, if any, were taken by them to determine if there were adjustments to the work and/or working arrangements of the Complainant that could or would enable her to remain in the employment. S.85A of the Act is clear in placing the obligation on a complainant in the first instance to establish facts from which it may be presumed that discrimination has occurred and the case of Mitchell v. Southern Health Board, (2001) ELR 201 has expanded on these requirements. In the instant case, in the absence of evidence of any consideration of potential reasonable accommodation by the Respondent, there is ‘prima facie’ evidence of discrimination and the burden of proof shifts to the Respondent. The unambiguous nature of the medical advice does not absolve the Respondent of their responsibilities under s.16(3) before reaching a final decision on the Complainant’s future employment. The Court appreciates that it was made immensely difficult for the Respondent because of the Complainant’s unwillingness to accept the medical report or to put forward alternative medical judgment and it is evident that these facts combined with the medical report led to what the Respondent believed to be the only logical conclusion. It may be the case that any such consideration of possible alternative arrangements would have resulted in the same outcome but that cannot be said with certainty and the burden of proof shifted to the Respondent to show that this failure was not discriminatory and can be justified objectively. InA Health and Fitness Club v. A Worker EED 037it was noted that a bona fide belief that a worker is not capable of undertaking a job is a defence against a claim of discrimination on grounds of disability. However, the finding in that case went on to note that, before forming this belief, an employer is ‘..normally required to make adequate enquiries so as to establish fully the factual position in relation to the employee’s capacity’. As noted inA Worker v. An Employer (2005) ELR 159; The duty placed on an employer by s.16(3) includes, by implication, a requirement to make a proper and adequate assessment of the situation before decisions are taken which may be to the detriment of a disabled employee. As was pointed out by the EAT for England and Wales in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] I.R.L.R. 566, this arises because in the absence of such an assessment it will often be impossible for the employer to know what facilities or special treatment may be reasonable, possible or effective.” The Court recognises that the Complainant withheld co-operation in not providing her own medical arguments and in her unwillingness to accept the medical assessment, while declining to put forward alternative medical evidence. The Court has to consider the possibility that, at the least, she might have been able to mitigate the effects on her if she had taken a different approach but that is an argument to be weighed in assessing compensation for the effects due to discrimination, the requirement set out in s.82(1)(c) of the Act. It is not a defence for the clear failure by the Respondent to meet the requirements of the Act. In failing to even consider possible reasonable accommodation, the Court is satisfied that the Respondent not only created a ‘prima facie’ case of discrimination but that this failure amounted to direct discrimination. Accordingly, taking all of the above factors into account, the Court upholds this element of the Complainant’s appeal and directs the Respondent to pay her a sum of €10,000 in compensation. Determination: The Decision of the Adjudication Officer is partially overturned.
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