Complainant

Respondent

Parties

James  Flanagan

Department Of Justice Equality and Law Reform Irish Prison Service

Representatives

Mr Colmcille Kitson BL instructed by Jean Connors, Jean Connors & Co Solicitors.

Mr Andrew Whelan BL instructed by Karen MacNamara, Chief State Solicitor's Office

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-00045145-001

12/07/2021

The Complainant is a prison officer employed by the Respondent. Employment commenced in 1999.

This complaint was received by the Workplace Relations Commission on 12th July 2021.

Comprehensive written submissions were received from both parties.

The Complainant is employed as a Work Training Officer (WTO) by the Respondent through the Irish Prisons Service (IPS) which operates as an executive agency within the Department with responsibility for the prison system in the State. The Complainant has been employed by the Respondent since 26th October 1999.

The Complainant was initially deployed at the IPS's Mountjoy facility until February 2001 when he was transferred to the Dochas facility. The Complainant applied for, and was granted a transfer, from the Dochas facility back to Mountjoy in 2004. Following his promotion to WTO in 2013, the Complainant was assigned to the Training Unit in the Mountjoy facility before its closure in May 2017 at which point he was deployed in the Mountjoy facility.

In 2017 the Complainant was diagnosed with prostate cancer, and this necessitated numerous medical appointments for the purposes of treatment and monitoring the Complainant's health.

The Complainant sought to apply for a transfer within thePrisonService thatwould havetheeffectofputting himonaseven-day liabilityroster.Therationalefor theComplainant'sdesiretomovetosucharosteristo enable him to schedule medicalappointments on a moreconsistent basis than hewas able to on the five-day liability roster.

The Complainant's transfer was refused despite him being the first candidate under the IPS transfer policy. The IPS relied on a residual discretion to operate outside the policy when refusing the Complainant's requested transfer.

The Complainant brought a WRC complaint for, inter alia, a failure by the Respondent to provide him with reasonable accommodation. At the eleventh hour prior to that complaint being determined, the Complainant was offered a bespoke 6-day roster which, it was (and is) accepted alleviated the Complainant's difficulties in attending medical appointments. However, and with no intention of being truculent, the Complainant was aggrieved at the very late nature of this offer and that fact that it was in the face of repeated claims that accommodating him a specialised rostering arrangement was impossible. The Complainant is also aggrieved that after this complaint was determined, the entirety of the WTO ISM grade in Mountjoy and other Prisons were placed on a 7-day roster.

The Complainant applied, as he was entitled to, for a transfer to Shelton Abbey prison in or around February 2019. As submitted by the Respondent, transfers are administered on the basis of seniority and the Complainant became eligible for a transfer in or around February 2021. Although it is not particularly material to the legal issues for determination, the Complainant was motivated to transfer to Shelton Abbey by professional and personal reasons. In any event, there is no dispute that he was entitled to seek a transfer and that he was entitled to the transfer on the basis of seniority.

ThereisnodisputeontheseproceedingsthatComplainantwasinformedpriortohis transfer toShelton Abbey that hewould not beaccommodatedon a 6-dayroster. Respectfully,theRespondent'srelianceonthisfactismisplacedand,infact,simply servestohighlight theunlawfulnatureof its actions.

In short, it is not open to any employer to simply refuse to reasonably accommodate a person. Moreover, that the Respondent adopted this position prior to assessing the individual needs to Complainant underscores that this is through the operation of a blanket policy rather than a case specific analysis.

Although Complainant does not understand there to be any dispute about the issue in the proceedings, it is beyond doubt that accommodating him on the bespoke 6-day roster or a 7-day roster would benefit his treatment. In this regard, Complainant will rely on an Occupational Health Report dated 14th December 2018 in support of his position. The Occupational Health Report stated in no uncertain terms that transferring Complainant to a seven-day liability roster would be beneficial to him and appeared reasonable in the circumstances:

As you know the Complainant has prostate cancer. His specialist at present is adopting a programme of active monitoring. This involves regular hospital appointments for blood tests / investigations / specialist review.

To enable the Complainant, attend such appointments with minimal impact on his work he would like to change to the 7-day roster (shift pattern).

The Complainant is a long serving prison officer with a good sick leave record. Allowing him change to a WTO position in the laundry or kitchen and do a 7-day roster would benefit his overall health and wellbeing greatly and help him cope with what is a very difficult medical diagnosis.

LEGAL SUBMISSION

It is not anticipated that the Respondent will contest that the Claimant has a disability within the meaning of the Employment Equality Acts. For completeness, however, disability is defined by s.2 of the Employment Equality Act 1998 as:

"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.

In A worker -v- An Employer (ADJ-00008968) the WRC accepted that cancer, in that case breast cancer, amounted to a disability. There is no reason in this complaint to depart from such a finding. In particular, the Claimant's illness falls within "c" of the above definition.

In Chacon Navas -v- Eurest Colectividades SA [2006] 3 CMLR 40 the CJEU considered the meaning of disability within the context of the General Framework Directive. The Court held that the concept of disability, for the purpose of Directive 2000/78/EC, must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life because the Directive related specifically to employment. In the within case, the Claimant's illness hinders his participation in professional life because he is required, for obvious reasons, to attend numerous medical appointments for treatment and monitoring of his condition.

In this case, the Claimant complains that he has not been offered reasonable accommodation by the Respondent. The duty to provide reasonable accommodation derives from s.16 of the Employment Equality Act 1998, as amended, which provides at subsections (3) and (4):

(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.

(a)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,

(b)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) In subsection (3)-

 ,,employer" includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include -

(a)      such a person who is seeking or using any service provided by the employment agency

(b)   such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c)    such a person who is a member of or is seeking membership of the regulation body,

"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 of paragraph (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;]

Subsection (3)(b)(i) makes it clear that an employer is obliged to take appropriate measures to enable a person who has a disability to have access to employment on the same basis a person without such a disability. For the purposes of this section, a person with a disability is to be considered fully competent and capable to undertake the duties attached to a job, if the person could do the duties with the assistance of special treatment or facilities. The nature and extent of an employer's obligations under this section was considered by the Labour Court in An Employer v A Worker [2005] E.L.R. 159, the Labour Court noting that the provision of "special treatment or facilities" necessarily involved an element of more favourable treatment. The Labour Court continued:

"The provision of special treatment or facilities is not an end in itself It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be awarded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the personIs attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case."

In the recent case of Nano Nagle School -v- Daly [2019] IESC 63, McMenamin J summarised s.16 itself as requiring ' appropriate measures. The question of 'disproportionate burden' under s.16(3)(b) is to be evaluated by taking into account financial and other costs, the scale and financial resources of a business, and the possibility of obtaining public funding or assistance. (s.16(3)(c)). Section 16(4)(a) defines ' appropriate measures' as meaning effective and practical measures ' ·where needed' in a particular case to adapt the employers place of business on the basis of the disability concerned. Section 16(4)(b) provides that, 'without prejudice' to the generality of paragraph (a), this duty would also include the adaptation of premises and equipment, patterns of working time, distribution of tasks, or the provision of training or integration resources.

Similarly, inJette Ring -v- Dansk Almennyttig Boligselskab

 DAB (CaseC-335/11 and Case C-337/11 [2013] IRLR 571, the Court of Justice considered the extent of the duty imposed on employers to provide a disabled worker with reasonable accommodation. It addressed whether that duty included an obligation to offer a disabled worker a facility to work part-time. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be 'physical, organisational and/or educational.' It concluded that reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held:

It follows that that provision prescribes a broad definition of the concept of "reasonable accommodation".

The court continued:

Thus, with respect to Directive 2000/78, that concept must be understood as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers

At paragraphs 55 and 56, it went on to hold that, as Recital 20 in the preamble to Directive 2000/78 envisaged not only material but also organisational measures. The court concluded, therefore, that a reduction in working hours may constitute one of the 'accommodation measures referred to in Article 5 of that directive'.

In this case, the accommodation sought is eminently reasonable in nature, it is simply adjustment of working patterns. This is clearly intended to be the type of accommodation that employers provide in order to facilitate employees suffering from a disability. It is submitted in the strongest terms that an organisation of the size of the IPS should be able to accommodate the small change in working patterns requested by the Claimant and supported by occupational health assessment.

In that regard, the Respondent's bald assertion that because of staffing levels at Shelton Abbey prison the 6-day roster cannot be accommodated holds little weight. No specific explanation for why the Claimant cannot be accommodated on the 6-day roster has been provided.

 In Humphries v. Westwood [2004] 15 ELR 296, Dunne J, then a judge of the Circuit Court, held a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability, and its duration. While this case was considering capacity, and there is no dispute here that the Claimant would have capacity if accommodation was provided, the salient point is that there has been no individual reason given for the departure from the Occupational Health report or the bespoke roster.

CONCLUSION

This case may be considered by answering the following questions:

I.            1. Is it unreasonable for the Respondent to accommodate the Complainant in the bespoke 6-day roster which he held in Mountjoy Prison. In this regard, it is for the Respondent to establish of a specific and individualised basis why the accommodation sought is unreasonable. The Respondent's plea that staffing levels at Shelton Abbey are too low rings somewhat hollow in circumstances where no individual assessment has been carried out and no alternative measures have been suggested by the Respondent.

II.            2. Can the Respondent rely on the accepted fact that it informed the Claimant he would not be on a six-day roster in Shelton Abbey? There is absolute merit to the Respondent's reliance on this matter. Simply put the Claimant was entitled to fully participate in professional life included seeking a transfer to which he was entitled. It is not open to an employer to refuse to accommodate a person with a disability in any circumstances. It is, in fact, quite remarkable that a State authority should make such a claim.

III.             

It is the Respondent’s position that the Complainant has not been discriminated against contrary to the provisions of the Employment Equality Act, 1998 (as amended), or in any other way.

Background

The Complainant is a Work Training Officer employed by the Respondent since in or about January 1999. The Complainant is presently employed at the Respondent’s facility at Shelton Abbey open prison. The Complainant was previously employed at Mountjoy Prison. The Complainant initiated proceedings before the WRC in relation to his rostering at Mountjoy– a determination issued 23rd April 2020.

Whilst employed in Mountjoy prison, and in response to a request for reasonable accommodation, the Complainant was offered a 6-day roster by the Respondent in or about August 2019. The Complainant did not take up the offer of this roster at that time however he commenced working this roster in June 2020 (following the determination of the WRC). Under this roster, the Complainant worked 8am – 8pm on seven days over a 14-day period, Monday - Saturday. The Respondent will contend that this arrangement is not standard, the standard roster for his grade being Monday to Friday 8am – 5pm. In the standard roster, attendance is on 10 days per fortnight.

The Complainant had applied for a transfer to Shelton Abbey in or around February 2019. The Respondent administers transfers on the basis of seniority and the Complainant became eligible for a transfer in or around February 2021. Notwithstanding the fact that the Complainant was advised that the roster sought was not available at Shelton Abbey, he requested that the Respondent proceed with his transfer, and he took up position in Shelton Abbey on the 20th March 2021 on the basis of a Monday to Friday 8-5 pm roster. It is this issue that forms the basis of the within complaint.

On 20 April 2021, the Respondent advised the Complainant that 7-day rosters were now available at certain prisons for his grade (WTO ISM), including his former workplace Mountjoy Prison, but not at Shelton Abbey. He was therefore offered the opportunity to transfer back to his former location on the basis of a 7-day roster. At this stage the Complainant sought to remain in Shelton Abbey on the same roster terms as he had at Mountjoy (6-day roster) however the Respondent was unable to facilitate this request due to the staffing resources at Shelton Abbey and the fact that rosters for each institution must be agreed at national level between the IPS and Prison Officers Association (POA). It is this issue that forms the basis of the within complaint.

Complainant’s case

The Complainant commenced the within proceedings on 12th July 2021. The Complainant complains that the Respondent has failed to provide him with reasonable accommodation. In particular, the Complainant asserts that the refusal to provide him with a 6-day roster at Shelton Abbey was discriminatory.

The Complainant asserts that the Respondent has failed to provide him with reasonable accommodation arising from a disability. The Respondent is aware of the Complainant’s disability and had provided accommodation, in terms of working time, to him previously. In the present case the Complainant asserts that the Respondent has discriminated against him by refusing him his requested roster at Shelton Abbey.

Respondent’s case

The Respondent submits that the Complainant’s claim is not well founded. At all times the Respondent has made it clear to the Complainant that it was, and remains, willing to accommodate him.

By email dated 20th April 2021, the Complainant sought a 6-day roster at Shelton Abbey. The Respondent replied by email of even date and set out in detail the reasons why the Complainant could not be accommodated with a 6- day roster at Shelton Abbey. The Respondent will rely on this exchange of emails; however, in summary the Respondent outlined the reasons why the Complainant could not be accommodated as follows;

·       In advance of his transfer to Shelton Abbey, the Complainant was informed of the rostering provisions at this facility. In an email of 15th February 2021, the Respondent set out the roster in Shelton Abbey and stated that it was a 5-day roster, Monday to Friday 8am – 5pm. The Respondent also expressly stated that due to the limited resources at Shelton Abbey. there was no flexibility regarding rostering.

·       Given that a 6-day roster could not be accommodated, the Complainant was afforded the opportunity to withdraw the request. In the knowledge of the foregoing, the Complainant requested that the transfer go ahead and moved to Shelton Abbey.

·       By email of 20 April 2021, the Respondent wrote to the Complainant outlining that 7-day rostering arrangements were now available to him at various locations and in an effort to accommodate the Complainant, the Respondent put a stay on the filling of vacancies at its other facilities so that the Complainant could avail of 7-day rostering arrangements at his former location Mountjoy Prison or indeed alternative locations. The Complainant did not accede to the offer but instead (by email of same date) sought a 6-day roster at Shelton Abbey.

·       On foot of this request, the Respondent replied on 26 April 2021 again setting out the reasons why it was not possible to accommodate the Complainant with a 6-day roster at Shelton Abbey.

·       A follow up email was sent to the Complainant on the 30 April 2021 to which there was no response.

The Respondent will contend that regard must be had to the nature of the Respondent’s facility at Shelton Abbey. The facility at Shelton Abbey is a small open prison which has 40 staff in total whereas the Respondent’s facility at Mountjoy has approximately 440 staff. Accordingly, with 10-times more staff at the Mountjoy facility, it is possible for the Respondent to afford accommodation to the Complainant that is not possible at the Shelton Abbey facility. The Respondent will also assert that the Complainant was expressly informed of this in advance of his transfer to Shelton Abbey. The Respondent will adduce evidence of how, having regard to the specifics of the facility at Shelton Abbey, the request is disproportionately burdensome.

The Complainant contends that because the Respondent did not agree to the precise terms of the accommodation sought, it has discriminated against him. The Respondent firmly rejects this assertion. The Respondent submits that it is not obliged to agree to the precise accommodation sought, rather it is obliged to provide reasonable accommodation.

For the avoidance of any doubt, the Respondent is fully aware of its duties to provide reasonable accommodation to the Complainant and has sought to do so. The Respondent endeavoured to accommodate the Complainant and offered him alternative locations where he could be accommodated. The Respondent asserts that regard must be had to the conduct of the Complainant in refusing to transfer to any of the alternative locations offered (including one where he worked previously) without any explanation whatsoever.

The Employment Equality Acts, 1998 - 2015 (“the Employment Equality Act”)

Article 5 of The Framework Directive 2000/78EC states that, in order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. Pursuant to Section 16 of the Employment Equality Act, appropriate measures shall be taken so that a person might have access to employment, participate or advance in employment, and undergo training unless the measures would impose a disproportionate burden on the employer. When considering the burden, account shall be taken of the financial and other costs involved, the scale of the financial resources of the employer’s business and the possibility of obtaining public funding.

Appropriate Measures in relation to a person with a disability, are defined as:

(a)                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 of paragraph (a), includes the adaption 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 provide for himself or herself.

The Respondent refers to the seminal decision of the Supreme Court in the Nano Nagle case (Nano Nagle School v Marie Daly [2019] IESC 63). Therein McMenamin J. states at paragraph 84 that section 16(3) of the Act explicitly identifies the mandatory primary duty of an employer;

“He or she shall take appropriate measures where needed in a particular case to have access to employment, participate or advance in employment, and undergo training.”

The Court notes that section 16(4) of the Act goes on to identify what appropriate measures should be taken and states;

“Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time and distribution of working time…”

The Respondent submits that the accommodation sought by the Complainant in the present case was an adjustment of his working time to match what he had been working at Mountjoy prison. The Respondent understands that this pattern suited the Complainant as it permitted him to organise his treatment and rest period following treatment. This was facilitated with the offer of a 6-day liability roster in Mountjoy prison.

The Respondent notes that the practical effect of this roster arrangement reduced the Complainant’s attendance wherein he would work 7 days in 14. The Respondent made it expressly clear to the Complainant that, having regard to staffing constraints, this roster would not be available at Shelton Abbey. Notwithstanding this, the Complainant advised that he wished to proceed with the transfer.

The Respondent submits that regard must be had to the Complainant’s conduct in requesting and accepting the transfer to Shelton Abbey on specific terms and where he knew that his particular roster would not be available. The Respondent has sought to facilitate the Complainant; however, the duty on the Respondent is not absolute – the Supreme Court in Nano Nagle affirming that the test is one of reasonableness and proportionality. The Respondent respectfully submits that in the circumstances, the Complainant’s request is not reasonable and to facilitate same would be unduly burdensome on the Respondent.

Conclusion

The Respondent submits that when the Complainant was offered a transfer to Shelton Abbey, he was advised that his then present roster could not be accommodated. Having full knowledge of this, he instructed the Respondent to proceed with the transfer. Upon notification of the request for reasonable accommodation by the Complainant, it considered the request and offered the Complainant alternative locations where his request could be facilitated. The Complainant did not take the Respondent up on this offer. The fact that the Respondent did not accede to the precise terms of the Complainant’s request is, in the circumstances, not discriminatory. It is respectfully submitted that in response to the Complainant’s request, reasonable accommodation was offered and refused by him, and accordingly the Complainant’s claim should fail.

The Complainant had applied for a transfer to Shelton Abbey in or around February 2019. The Respondent administers transfers on the basis of seniority and the Complainant became eligible for a transfer in or around February 2021. Notwithstanding the fact that the Complainant was advised that the roster sought was not available at Shelton Abbey, he requested that the Respondent proceed with his transfer, and he took up position in Shelton Abbey on the 20th March 2021 on the basis of a Monday to Friday 8-5 pm roster. It is this issue that forms the basis of the within complaint.

On 20th April 2021, the Respondent advised the Complainant that 7-day rosters were now available at certain prisons for his grade (WTO ISM), including his former workplace Mountjoy Prison, but not at Shelton Abbey. He was therefore offered the opportunity to transfer back to his former location on the basis of a 7-day roster. At this stage the Complainant sought to remain in Shelton Abbey on the same roster terms as he had at Mountjoy (6-day roster) however the Respondent was unable to facilitate this request due to the staffing resources at Shelton Abbey and the fact that rosters for each institution must be agreed at national level between the IPS and Prison Officers Association (POA). It is this issue that forms the basis of the within complaint.

In offering the Complainant the opportunity to transfer back to Mountjoy Prison the Respondent has offered reasonable accommodation to the Complainant and at the same time adhered to the agreement with the Prison Officers Association.

I must therefore conclude that the complaint as presented is not well founded and therefore fails.

In offering the Complainant the opportunity to transfer back to Mountjoy Prison the Respondent has offered reasonable accommodation to the Complainant and at the same time adhered to the agreement with the Prison Officers Association.

I must therefore conclude that the complaint as presented is not well founded and therefore fails.