Complainant

Respondent

Parties

Victorine  Neuray

LlRG5 Ltd

Representatives

Myles Gilvarry Gilvarry & Associates

Mary Paula Guinness BL instructed by Niamh Cassidy Hayes Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039579-001

03/09/2020

This is a case concerned with complaints that the Complainant and her husband are persons with disabilities and the Respondent failed to provide a reasonable accommodation to the complainant under section 16 of the Employment Equality Act related to those disabilities.

The Respondent markets and supplies a food supplement/cosmetic treatment. The Complainant was employed in a clerical post at the Respondents premises in Castlebar County Mayo from 2007 until July 2020. At the centre of the matters which led to the complaint was the decision of the Respondent to move their business premises from Castlebar to Knock in 2020.

In taking up her employment in 2007 the Complainant was conscious of her husband’s health. She agreed to work in Castlebar but refused to sign the terms and conditions of employment because they included a clause which required her to agree to possibly working in another location. At the time the MD was considering moving the business to another county. She agreed this at the time with the then managing director, since deceased. She also agreed an allowance for travelling from her home in Westport to Castlebar. She says that the staff first learned of the change of premises from Castlebar to Knock in February 2020 and were shocked. The concern was the length of time to travel to work. She described her health problems and those of her husband. Her husband was disabled owing to his severe health issues. She and another colleague met with the MD. She was told that she had signed a contract and had to respect it-but she had signed no such contract. She was also told that she had to choose between her personal and his professional life and she needed to organise herself accordingly. She submitted a grievance. The Respondent then engaged a named consultant with a colleague present and their meetings were recorded to commit to paper. She rejected the report of the external consultant expressing difficulties with the way he spoke to her at an unrecorded meeting in late March and was stressed as a result. She went out sick and then the offices were closed due to Covid. She did not return to work, citing stress and reasons related to Covid. She did not agree with the grievance report. There followed correspondence with the MD. Some of this was disputatious-while other elements related to her working part time with offers and counter offers related to same. These involved an increase in her hourly rate of pay but no further payment of expenses and a dispute regarding the days of work. The Respondent wanted Thursday and Friday-she did not want to work on Friday. On 11 May she began to refer to being dismissed, an assertion rejected by the Respondent. She sought carers leave at one point. She sought redundancy pay. She referred to seeking remote working and being refused. A final proposal was made by the Respondent on 25 May. The date of termination was given as 28 July 2020-as she heard no more from the Respondent after May and she considered herself dismissed.

Witness-Complainant

In her evidence the Complainant gave some detail of her husband’s disability. In particular she referred to the need for her to be available if he required her in an emergency and at short notice. This emergency would require her to be able to go home immediately and this was possible because she was working in Castlebar-and she lived in Westport, twenty minutes away. She was very concerned that if this occurred while she was at Knock-a further 20km away- she could not support him in that situation-it was too far away. She confirmed that she had refused to sign up to those terms provided years ago because of her concerns about possibly relocating. She had rejected the terms for part time working proposed by the Respondent because the expenses had been removed and while there was a higher basic hourly rate-it was not enough to cover her increased costs and her loss of expenses. She did not want to work Fridays. In response to the Respondent she agreed she had worked Monday to Friday previously, but Friday is the day her husband sometimes has medical appointments and she would like to be able to accompany him. She agreed under questioning from the Respondent that she had suggested shorter hours in a note on a meeting record.

Asked how often she had left the office due an emergency with her husband, she believed it was twice since 2013 and that a neighbour had assisted on a third occasion.

She spoke about her own health difficulties and medical advice that she should not do too much driving-her health issues were known in the office as she spoke about them.

Legal Arguments

Coleman C-303/06 was relied on in support of the contention that the Complainant was entitled to a reasonable accommodation. When it was put to the Complainants Representative that Coleman was concerned, not with a claim for a reasonable accommodation, but rather one of discrimination based on less favourable treatment compared to other employees, the representative reviewed case law and confirmed that the Coleman case was not concerned with a claim for a reasonable accommodation. Neither could he a find a precedent where it was used to decide a case in relation to reasonable accommodation. It was, he submitted, open to the Adjudication Officer to set a precedent.

The concept of reasonable accommodation is established by European Directive and Framework agreements with legal precedents. Mangold and Ferran were cited as establishing in European Law, a general right to non-discrimination. Nano Nagle was also cited.

The concept of “Reasonable Accommodation” does not require a direct or indirect comparator.

The Complainant is getting on in years, her husband has a severe medical condition. He had never heard of an employee being bound by a contract they had refused to sign. The Respondent had introduced for the hearing an argument based on a failure to provide medical evidence when that issue was never made by the Respondent previously and then only in the second submission. The Complainant has established a prima facie case based on her own disability and that of her husband. She was forced to resign when there was no accommodation or what was offered was not reasonable because of the loss of income and change in terms of payment. An alternative accommodation would have been for her to remain working in the Castlebar Office-consistent with her agreement when she commenced employment.

Von Colson and Kamann were cited as precedents in relation to compensation.

The essential facts were not greatly disputed relying on the same set of documents.

The Complainant was not dismissed, and she was not made redundant. There were good business reasons for the relocation. The Complainant was covered by the Terms and Conditions that she had refused to sign-they still applied to her. She was not made redundant and efforts were made to accommodate her request for part time working. This was what she had put forward to the external grievance hearer. There were several mixed messages as to whether the Complainant intended to move to the new premises.

Getting on in years is not a disability. The Complainant has not lodged a claim of age discrimination.

The Complainant had never submitted any medical evidence that she has a disability for the purposes of the complaint.

The Complainant submitted a grievance and it was heard and decided. Accusations of improper procedures were denied. The Complainant simply left the employment when she did not receive the payment package she was seeking. Correspondence submitted on behalf of the Respondent showed that the Complainant continued to submit medical certificates for a period after July when she says she was dismissed - while at the same time seeking a signature for social welfare purposes which suggested she was available for work.

In her complaint form the Complainant is not claiming that she had a disability as defined in the legislation and is relying on her husband’s disability as defined in the legislation to bring her within the protected category. This is not a stateable case in law.

Legal Arguments

In relation the Employment Equality Act and the claim of discrimination, no comparator was put forward. Regarding the claim for a reasonable accommodation and discrimination on that ground, no medical evidence was provided by the Complainant in relation to herself to support any claim for reasonable accommodation. The provision of medical evidence where a disability is claimed is a primary requirement for any person seeking a reasonable accommodation under the EEA-based on that disability. Ruiz S.A. 2018 IRL 372 was cited here. The Respondent had no knowledge that the employee was disabled and awaits full proof of same.

Based on the Complainants submission that her claim is grounded on the basis of discrimination in a failure to provide a reasonable accommodation based on her husband’s disability and that of herself-the first question which arises is did the Complainant seek a reasonable accommodation in respect of the care of her husband? I am satisfied that at all times the Respondent was aware of and under notice that the Complainant was seeking an accommodation based on her concerns for and the need to care for her husband. I am also satisfied that the issues around her husband’s health were well known to the Respondent, explained by the Complainant in the grievance procedure and later acknowledged in the offer of reduced working. That nobody involved, including the external consultant, was using language around the concept of disability within the meaning of the Employment Equality Act or any requirement to provide medical expert reports or similar, suggests that the matter of a ‘rights based’ issue was not in play in relation to an accommodation related to carer responsibilities-but rather an employee relations dispute which both parties made an effort to resolve but failed to do so.

The conclusion is that the Complainant never made a claim for a reasonable accommodation as defined under the Employment Equality Act. This is confirmed by the fact that at no stage prior to the complaint, in any correspondence issued by her, on her behalf did the question of discrimination arise notwithstanding the fact that there was legal correspondence claiming a dismissal.

It is very difficult to see how an employee can have a complaint about a failure to provide a reasonable accommodation if they did not ask for one in the first place. The terms of the Directive and the enabling legislation providing for a reasonable accommodation-are not inactive provisions, they provide a positive onus on employers to do what is reasonable and proportionate to enable the participation of disabled persons in the workforce. It follows therefore that while some employers may take an initiative to facilitate a person with a disability-there is at least an equal onus on the same person to indicate they are seeking to trigger their entitlements under the legislation-even if it is only to use the term or to say that they have a disability but are seeking to for example resume work. This aspect is revisited in relation to the claim of a failure to provide a reasonable accommodation to the Complainant.

Even if some latitude is allowed in this case that the Respondent knew the Complainants personal circumstances, knew she was concerned about caring for her husband and his medical history and was seeking an accommodation on those grounds-the second question which arises is whether she was entitled to do so, and correspondingly the Respondent was obliged to take the steps set out in Section 16 of the Act? Emphatically the answer to this question is no. The wording of the European legislation and the related national legislation is all about enabling the person with the disability to participate in the workforce ‘promoting their integration’. ‘This (reasonable accommodation) means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment….’. There is nothing in the legislation which provides for Section 16 of the Act to be triggered because a person related to the employee, but who is not themselves an employee, has a disability. The reliance on Coleman in a case around a refusal to provide a reasonable accommodation based on her husband’s disability is not a correct interpretation of that Judgement and does not apply to the facts of this case. The Respondents contention that, in seeking to bring the Complainant within the scope of Section 16 in relying on her husband’s disability, such a position is not ‘stateable in law’ is correct.

There is no stateable basis for a claim of reasonable accommodation based on the Complainants husband having a disability and this aspect of the complaint is not well founded.

Moving on to the aspect of the complaint related to a failure to provide a reasonable accommodation based on the Complainants own disability, the first question to be asked here is was one sought based on the disability ground as it applies to the Complainant? Extracts from the documents exchanged between the parties

04.03.20-MD to Complainant following their meeting: ‘If it remains your wish not to remain with us; as discussed; due to personal and family health issues and additional travel’

12.03.20’ This move…and makesmy care giving for care for my disabled husband very difficult’

And

‘no consideration given to remote working, to the additional travel and expense, to the disruption of family life or to reasonable accommodate the care of my disabled husband.’

23.04. reference to the Complainants own health-in the context of the work issues and Covid-not as a disability preventing her working in Knock.

11 May no reference to her having a disability

12 May not dismissed -reference to ‘accommodate your request’

12 June referring to the Respondent position that she would be required to sign a new contract with the new contract: Yu are making no serious effort to persuade me to amend the terms of that contract. Such a move increases expense interferes with my family, my health and care for my disabled husband and means longer travel time.’

28 July solicitor - no reference to reasonable accommodation-no reference to her having a disability-no effort to facilitate her in relation to the move.

The nearest reference to even the possibility of her having a disability refer to ‘my health’-but nowhere is there a reference to her having a disability-that term is reserved for her husband.The reference in the email setting out the grievance on 12.03 is to the care of her husband:

Q: You appear to present that your employer should accommodate for care of your husband? In what was should they make an accommodation?

R: I don’t know

Added by the Complainant 28th March

First I say I don’t know

After I added maybe I can work less hours.if not 2 days/week

And

You say no consideration given to reasonably accommodate care of your husband? How did you come to this conclusion?

‘Don’t know’

Modified 28th March to delete above and replace with:

I have a private life my and I am married. I have a sick husband who needs me and also I have health problems myself and I really cannot.’

These references to the Complainants own health issues are very vague and general-an add on to the primary concern-her role as a carer and responsibility to her husband. There is nothing said at this point or subsequently which suggested to the employer that she was claiming she was an employee with a disability. I am satisfied that for the most part the Complainant and the Respondent, including the grievance hearer were basing their discussions and consideration of the situation based on her concern for her husband and his disability. This is supported by the term used by the Grievance Hearer in his report where he refers to CareConsiderations. The two-day week was then explored-on this basis-and at her suggestion. No medical evidence was provided by the Complainant that suggested that a reduction to part time working was necessary on grounds that she had a disability.

On one point of detail which arose at the hearing- In his report the Grievance Hearer set out the employer’s grounds why remote working could not be offered, and this was not raised again be the Complainant until she made her complaint to the WRC. At the hearing she emphasised the part time working was her proposed solution which suggest that she accepted the reasons given by the Respondent as to why remote working was not a realistic option. This was not a case which centres on a refusal to provide remote working.

To summarise-there was no clear-cut request for a reasonable accommodation based on a disability on the part of the Complainant. More often than not, she was referring to her husband’s disability. She was engaging with medical advisers over the period March to August 2020 and sending in medical certificates and she was taking legal advice on her situation. It is not unreasonable to conclude that had she medical advice available which confirmed she had a disability such that would qualify for the use of that ground under the Act, that she would have provided it to the employer, and she failed to do so. This evidence is important-as it allows an employer to consider the situation fully and decide if the person is fit for work at all and/or to obtain their own medical assessment before offering a reasonable accommodation. They never had that medical information and they were entitled to same if the employee was claiming the application of Section 16 of the Act. The whole situation was a muddle -a muddle of contract claims, carer claims, cost claims, a redundancy claim, a claimed dismissal all being addressed by the Respondent as an employee relations issue-never having been put on notice or provided with evidence to support a complaint that this was a claim of disability under the Employment Equality Act seeking a reasonable accommodation on that ground.

In concluding that there never was a claim for a reasonable accommodation within the terms of Section 16 of the Act, I do so not doubting that the Complainant did have some health issues as she described at the hearing, but at no stage did she make a claim of a disability which contained the medical grounds why she was unable to  commute the extra distance and or work full time and neither did she provide any medical evidence to support such a claim. The Complainant Representative objected to the Respondent raising the failure to provide medical evidence of a disability at any time before the resumed hearing. This assertion is the wrong way round-it was for his client to provide that evidence to the Respondent and to make a proper claim before alleging discrimination on grounds of a disability post her resignation. And the Respondent line of reasoning only confirms that those questions were not asked because they were never on notice of a disability claim before the matter was referred to the WRC. Not to mention that until the first hearing they were not properly on notice as to the legal basis of the complaint to be answered as they had received no submission.

The Respondent contention based on precedents cited -that an employer must be placed on notice of a disability as defined by the legislation is correct.

 Based on the forgoing conclusions,  there is no requirement to examine whether the terms offered by the Respondent satisfy Section 16 of the Act concerned with the steps they would be obliged to follow under the legislation in circumstances where they were not put on notice of a disability or a claim related to a disability.  The Complainant has failed to establish facts which support a complaint that she was discriminated on the disability ground by way of a failure to provide her with a reasonable accommodation as provided for in Section 16 of the Employment Equality Act. This aspect of the complaint  is not well founded.

CA-00039579-001

The complaints of discrimination brought by the Complainant against the Respondent are not well founded.

Discrimination-Reasonable Accommodation-Employee and-Employees Husband-Disability Ground

Discrimination-Reasonable Accommodation-Employee and-Employees Husband-Disability Ground