Complainant

Respondent

Parties

Hannah  Duignan

Lough Rynn Castle Limited

Representatives

Lars Asmussen BL, Tiernan Lowey BL and Conor Bowman SC instructed by Sean Ormonde & Co. Solicitors.

Clare Bruton BL instructed by Kane Tuohy 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-00042449-001

11/02/2021

The Complainant worked for the Respondent hotel business from 2008 until she took sick leave in March 2017. She has been unwell since then and has continuously sent sick notes to her employer on a monthly basis to evidence that. Her complaint is that despite being on long term sick leave for in excess of 5 years, the Respondent has taken no steps to contact her or to ascertain her ability to work or to have her medically examined in order to see if she could work. She contends that the failure to take such steps constitutes a failure to make reasonable accommodation for her disability, which is anxiety and depression. 

The Respondent denies the complaint.

This complaint Adj. 31919 is linked to two other complaints, Adj. 37903 (Discrimination and Penalisation) and Adj. 39597 (Discrimination.) At the request of the parties all three Adj. complaints are to be considered and decided by this Adjudication Officer even though Adj. 39597 was not listed for hearing. This request was confirmed by the parties in writing on 22 September 2022.  The parties, being satisfied that the evidence in respect of all three complaints was tendered before this Adjudication Officer at the hearing on 19 September 2022, requested that decisions issue in respect of all three complaints.

For the purpose of clarification;

Adj 31919 (issued on 9 February 2021) is a complaint of discrimination namely the failure of the Respondent to make reasonable accommodation for the Complainants disability by failing to take steps to facilitate her return to work after an extended period of sick leave from March 2017 to 9 February 2021.

Adj 37003 (issued on 22 March 2022) asserts that the aforementioned failure to make reasonable accommodation (to facilitate a return to work) continued after the issue of the above complaint from 7 February 2021 until the complaint issued on 22 March 2022.  This complaint also makes a complaint of penalisation under the SHWW Act 2005, for the failure of the Respondent (before the Complainant took sick leave in March 2017) to investigate a grievance made against the Complainant’s manager in December 2016. The Complainant asserts that this is adverse treatment as a result of the Complainant making a protected act.

Adj 39597 (issued on 21 June 2022) asserts that the Respondent’s failure to facilitate a return to work) continued from 22 March 2022 until the issue of this complaint on 21 June 2022

The Complainant gave evidence under oath.

Pre-March 2017

The Complainant commenced work for the Respondent, a hotel business in County Leitrim, on 13 October 2008, as a hotel services manager. She went on sick leave (for stress) in September 2015 and returned to work in May 2016. On her return to work she found that was treated differently. Her manager, Mr. Reidy reduced her duties and asked her to sign a contract that did not reflect her work duties. She was essentially demoted. She made a formal complaint against Mr. Reidy on 20 December 2016 before taking sick leave between Christmas and New Year.  The Complainant was declared fit and returned to work on 1 January 2017. The Complainant asserts that following her return to work in January 2017 the demoted nature of her work continued. The Respondent failed to address or investigate the complaint that she had brought against Mr. Reidy. This sidelining of her concerns, the disrespect shown towards her, the devaluation of the work contribution she had made over many years, in addition to her demotion and reduction of duties left her with a low sense of self-worth which triggered a further episode of anxiety and stress. She became unwell and took sick leave in March 2017. Since March 2017 she has been sick and has not returned to work because her doctor has certified as an unfit to work.

The Complainant stated that the Respondent made no attempt from March 2017 onwards to contact her, to medically assess her or to take any steps to facilitate her return to work. She never told her employer that she did not want to return to work and she sent sick certificates to the Respondent each month, which clearly evidenced a desire to return to work.

The first effort that the Respondent made to contact the Complainant was made after this complaint issued and following the second Adjudication hearing on 18 May 2022, when on 20 June 2022 the Respondent asked the Complainant to attend an Occupational Health Assessment. A medical examination was conducted by Medmark on 5 July 2022. The finding of the Dr. Colreavy was that the Complainant remained unfit for work but that with further treatment she might be fit for work in 6-8 weeks following the assessment. Since this assessment the Complainant has continued to send in GP sick certificates.

The Complainant gave evidence that the manager of the Respondent Mr. Alan Kane met her in September 2022 however during their conversation he did not suggest that she return to work. The Complainant confirmed in her evidence at the Adjudication hearing that she wanted to return to work.

Cross-examination of the Complainant

Under cross examination the Complainant accepted that following her sick leave in 2015-16 she furnished a fitness for work certificate and on foot of this she returned to work.

The Complainant accepted that following the short period of sick leave in December 2016- January 2022 she furnished a fitness for work certificate and on foot of this she returned to work.

The Complainant accepted that since March 2017 she has been continuously certified as unfit for work and she accepted that she was currently unfit to return to work. She gave evidence that on foot of recent medical advice she needed to undergo further treatment which she hopes will allow assist her recovery.

The Complainant stated that when she went on sick leave on 3 March 2017, the bullying complaint she made against Mr. Reidy the previous December still had not been dealt with by the Respondent. The disrespect that was implicit in that inaction added to her stress. She submitted that it is noteworthy that no action to deal with her complaint against Mr. Reidy has ever been taken.

In terms of the investigation of her complaint against Mr. Reidy, the Complainant accepts that when the Respondent’s solicitor wrote to the Complainant’s solicitor on 20 March 2017 suggesting that her complaint would be investigated under the Company’s Bullying and Harassment Policy, her solicitor, Mr. Ormonde replied by way of letter dated 27 March 2017 objecting to this suggestion stating that the Complainant had raised the grievance four months earlier and expressing surprise that it was being suggested that the investigation would take place at a time when she is on sick leave. Mr. Ormonde objected in the strongest of terms to any contact being made with the Complainant as this would cause her anxiety and upset. Mr. Ormonde suggested that this was further evidence of bullying by the Respondent.

It was put to the Complainant that following receipt of this letter that it was reasonable for the Respondent not to make contact with her until such time as it was indicated either by her or her solicitor that she was open to being contacted by the Respondent so that her grievance could be investigated.

It was put to her that as she was unfit for work from March 2017 to date and that the Respondent had no basis to believe from then until the first WRC complaint issued in February 2021, which took the Respondent by surprise, that she was either willing or able to return to work. Cross examination concluded.

Counsel for the Complainant made the following submissions:

1.       Following the Supreme Court case of Nano Nagle v. Daly [2019] 29 ELR the duty to make reasonable accommodation required the Respondent to take positive steps to allow person with a disability to work. The Respondent had failed to even countenance the possibility that she might return to work, and this is evidenced by the fact that they did not contact her for five years and they did not seek to have her medically assessed.

2.       Sending in sick notes consistently for five years is clearly evidence of a desire to return to work.

3.       A time-bar point has no relevance when the failure to take positive steps to facilitate a return to work is an ongoing breach. The first positive step by the Respondent to facilitate the Complainant’s return to work was the Medmark assessment in July 2022 and the meeting with Alan King in September 2022, i.e. after this complaint issued.

The Respondent made preliminary applications as follows:

1.       The complaint of discrimination (failure to make reasonable accommodation to permit the Complainant’s return to work) is out of time because there is no evidence of a discriminatory act during the 6 months prior 9 February 2021, when the complaint was brought. No request for a return to work was received from the Complainant since March 2017. The first time that this was even suggested was at the second WRC hearing on 18 May 2022, but at that time the Complainant was still sending in sick certificates.

2.       Sick certificates are a medical certification that a person is sick and unable to work. Sending them to an employer does not imply a request to return to work – nor could this be if the person remains sick and unfit to work. The complaint before the Adjudicator is whether a discriminatory act occurred before the complaint issued (in February 2022) when no request to return to work had been received.

3.       The Complainant had not adduced evidence to prove her disability and was on full proof of same.

4.       No prima facie complaint of discrimination had been proven by the Complainant.

5.       The Personal Injuries Summons issued by the Complainant pleads failure to make reasonable accommodation to allow a return to work. The Complainant should not be afforded the same relief in two different fora.

No evidence was tendered on behalf of the Respondent, instead the Respondent relied on the correspondence between the parties, conceded facts and submissions.

For the purpose of the Adjudication hearing, and because the Complainant was present and was suffering from stress and anxiety, Counsel for the Respondent stated that the Respondent was willing to concede, on a conditional basis, the Complainant’s assertion that she suffered from a disability. The condition being that if the matter were to be appealed or be dealt with in another forum that no argument of estoppel (or other similar argument to prevent the Respondent to rely on this point) would be asserted on behalf of the Complainant, which the Respondent legal representative accepted.

The Respondent submitted that the discrimination complaint was out of time and lacked substantive merit. The reliance on Nano Nagle v. Daly was misplaced insofar as the duty of an Employer to take positive steps only arise if the employee has expressed a desire to return to work, which she had not prior to the issue of this complaint.

Furthermore the Respondent acted reasonably in not contacting the Complainant in circumstances where her solicitor expressly advised 27 March 2017 that the Complainant was not to be contacted directly (because this caused an exacerbation of her stress) and that the investigation into her grievance against Mr. Reidy was not to be conducted while she was on sick leave and she remained on sick leave from March 2017 to date.

No request that she be permitted to return to work.  was received by the Respondent from the Complainant or her legal advisor before the making of this complaint.

The Respondent concluded that the complaint should fail because it is statute barred and/or should the substantive complaint of discrimination should fail because the Complainant has failed to prove a prima facie case of discrimination.

Counsel for the Respondent made the following submissions:

1.       The Respondent was not made aware of the Complainant’s desire to return to work prior to the making of this complaint.

2.       The Respondent cannot be criticised for failing to make contact with the Complainant when they had been told not to and consequently the alleged breach cannot be correctly described as a continuing breach.

3.       The complaint is out of time.

4.       The Complainant is unfit for work. She was certified as unfit for work from March 2017. She was certified as unfit for work when this complaint issued. She remains certified as unfit for work.

5.       The Supreme Court authority of Nano-Nagle v Daly does not give rise to the duties asserted by the Complainant. The duty to make Reasonable Accommodation does not arise where an employee is unable to do any work.

6.       The complaint should fail for being time barred and because no prima facie case has been proven.

Hearing in Public

No application for “special circumstances” was made by either party and the parties agreed for the Adjudication hearing to proceed in public.

Having heard the arguments on behalf of both I find that this complaint is out of time and, while I am not obliged to go further than this, because there are other complaints in being, I also find that the Complainant has not discharged the duty of proving a prima facie case of discrimination.

Hearing over three days

This Adjudication took place over three days namely 15 March 2022; 18 May 2022 and 19 September 2022. On the first day the complaints before this Adjudication Officer were Adj. 31919 (discrimination) and Adj. 37903 (discrimination and penalisation). The hearing did not proceed on the first day. The Complainant’s solicitor sought an adjournment because the Complainant was unwell and was unable to attend. The Respondent objected to the adjournment. The Adjudication hearing was adjourned.  

On the second hearing date (18 May 2022) the complaints before this Adjudication Officer were Adj. 31919 (discrimination) and Adj. 37903 (discrimination and penalisation.) The hearing did not proceed on the second day because the Complainant’s Counsel sought an adjournment on the basis that as a mediation (in respect of the Complainant’s High Court personal injury proceedings) was due to take place on June 2022,  there was a hope that these WRC complaints might also be resolved then. The Respondent objected to the adjournment. The Adjudication hearing was adjourned.  

On the third hearing date (19 September 2022) the complaints before this Adjudicator were again Adj. 31919 (discrimination) and Adj. 37903 (discrimination and penalisation) however, on the third hearing date, the Adjudicator was informed that a third additional complaint (Adj. 39597) had been issued on 21 June 2022 following the second hearing date and the third hearing date. This was a discrimination complaint for a continuing discrimination between 22 March 2022 (when the second WRC complaint issued) and the 21 June 2022.

It was agreed between the parties that even though Adj. 39597 was not listed for hearing before the Adjudicator on 19 September 2022 that the Adjudicator would assume seisin of all three complaints and would issue decisions in respect of all three complaints. This was subsequently confirmed by way of email to the Adjudicator on 22 September 2022.

Findings

In this Adjudication (Adj. 31919) I need to consider if the complaint is out of time and/or if the Respondent’s conduct prior to the issue of this complaint (9 February 202) constituted a discrimination or failure to make reasonable accommodation for the Complainant’s disability. The other two complaints (in Adj. 37903 and 39597) are in respect of other alleged breaches which occurred after March 2022 and after June 2022 respectively and I will deal with those complaints separately.

This complaint of discrimination in Adj. 31919 is that the Respondent failed to make reasonable accommodation because from the time she went on sick leave in March 2017 the Respondent failed to take steps to facilitate the Complainant’s return to work following a five-year period of sick leave.

The Respondent’s preliminary application that the complaint is out of time requires me to consider if there was an act of discrimination in the six months prior to the complaint being brought on 9 February 2021.

The substantive complaint requires three premises to be met; first, that the Respondent knew that the Complainant had a disability, second, that the Respondent knew that the Complainant wanted to return to work and third, that the Complainant was fit to return to work and the Respondent was aware of this.  Without these necessary evidential ingredients, this complaint cannot succeed.

Whilst there is disagreement in the background facts and the issues that gave rise to the original dispute between the parties (particularly the unhappy dealings between the Complainant and her manager) the facts that are pertinent to this Adjudication, are largely not in dispute.

For the purpose of this Adjudication only, the fact of - although not the knowledge of  - the Complainant’s disability is conceded by the Respondent.

Turning now to the premises. I find that the Complainant has not proven that the Respondent was aware of the Complainant’s disability. As the authorities make clear, work -place stress does not necessarily constitute a disability un the Employment Equality Acts. I also find that there is no evidence that the Respondent was aware of the Complainant’s desire to return to work prior to this issue of this complaint.  The Complainant accepts that neither her nor her solicitor asked her employer that she be allowed to return to work in the 6 months prior to February 2021.  A letter dated May 2020 was sent to Hegarty and Armstrong Solicitors (who did not represent the Respondent) and this letter was not identified until after the Adjudication hearing on 18 May 2022.)   The Complainant also contends that the issue of sick certificates each month to the Respondent from March 2017 on was an implied request to return to work and the Respondent should have inquired if she wanted to return to work and thereafter it should have taken steps to allow her return to work duties that took account of her disability.

I am not satisfied that the May 2020 letter was received by the Respondent. I also do not accept that the provision of a sick certificate is - without any other positive expression - an implied request to return to work.  A sick certificate is medical proof that a person is sick and in the opinion of the doctor, is unable to work because of that sickness. It is a certificate to state that an employee is not returning to work and the reason why. In the absence of an express request to return to work, which did not issue prior to this complaint being brought, it is not reasonable to suggest that the Respondent knew that the Complainant wanted to go back to work or that the Respondent was obliged to take positive steps to suggest a return to work, given that she was still sick.  Indeed, given the objections raised by Mr. Ormonde in his letter of 27 March 2017, were any action taken by the Respondent to push for her to return to work, this might have been regarded by the Complainant as being oppressive given the stress that she was under. The Complainant’s unfitness to work was certified in March 2017 and, most unfortunately for the Complainant, this certification has not changed since. This is not a situation like Nano Nagle or the other reasonable accommodation authorities where a person has a disability but is able for lesser or lighter duties. In this case, the Complainant’s doctor has continuously certified since March 2017 that the Complainant is not fit for work at all. There has been no suggestion either by her or her doctor at any point that she might be fit for lighter or alternative duties.

Had she requested a return to work, which was expressed on her behalf at the second Adjudication hearing on 18 May 2022, then I accept that it could be argued that the Respondent owed her an obligation to investigate as to whether this could be accommodated. However, on 9 February 2022 no such request had been made and consequently no such obligation arose.

I am satisfied that there no act of discrimination took place in the 6 months prior to 9 February 2021 and that this complaint is out of time.

Furthermore, the sake of completeness, even if the complaint were not time barred, given her certified unfit status, I am satisfied that no prima facie case of discrimination has been proven. From March 2017 until this complaint issued in February 2021 the Complainant was continuously certified as unfit for work. In such circumstances, I am satisfied that no duty lay on the Respondent to take steps to engage with the Complainant while she was still sick, particularly in circumstances where the previous attempts to engage with the Complainant during an earlier period of stress-related sick leave were met by an objection by her solicitor (who understandably was motivated by a duty to protect the Complainant from any pressure given that she was unwell). This objection was made and did not change prior to the issue of this complaint. Mr. Ormonde’s advice to the Respondent in his letter dated 27 March 2017 – was that no further contact should be made with the Complainant and that did not change in the years that followed, during which, the Respondent did as they were told and made no contact with the Complainant. They cannot be criticised for that.

I am satisfied that this complaint is out of time. In the alternative I find that on the grounds that the Complainant has not adduced prima facie evidence to prove that the Respondent failed to make reasonable accommodation and that this complaint is not well founded.

I find that the complaint is out of time. In the alternative, I find this complaint not well founded because a prima facie proof of discrimination has not been discharged by the Complainant.

Discrimination  - failure to make reasonable accommodation – long term sick leave – duty to encourage employee back to work – time bar.