Complainant

Respondent

Parties

Hannah  Duignan

Lough Rynn Castle Limited

Complainant

Respondent

Anonymised Parties

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-00051248-001

21/06/2022

The Complainant worked for the Respondent hotel business from 2008 until she developed anxiety and went on sick leave in March 2017. She has been unwell since 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, from 22 March 2022 (when her second complaint issued) until this complaint (Adj 39597) issued on 21 June 2022) the Respondent took 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 this failure constitutes a failure to make reasonable accommodation for her disability, which is anxiety and depression. 

This discrimination complaint is specifically that if the Respondent is successful in persuading the Adjudicator that the complaint in Adj 31919 (issued on 9 February 2021) was out of time and or that the Complainant failed to show that the Respondent was on notice of her wish to return to work and if the Respondent is also successful in satisfying the Adjudicator that the complaints in Adj 37903 were either out of time and or that the Respondent was not on notice of the Complainant’s desire to return to work, then the second WRC complaint (Adj 37003) which issued on 22 March 2022 in which it was apparent that the Complainant did wish to return to work and in light of correspondence (sent on behalf of the Complainant in May 2020 and March 2021)  which clearly showed that the Complainant wished to return to work,  that after 22 March 2022 when there was a continued failure to engage with the Complainant to facilitate a return to work, this is was discriminatory and a failure to make reasonable accommodation of the Complainant’s disability.  On foot of this alleged failure the Complainant issued this complaint on 21 June 2022 alleging that, at the very least, from 22 March 2022 (following the second complaint) the Respondent were on notice of her wish to return to work but failed to make reasonable accommodation by failing to take steps to facilitate this wish before the complaint issued on 21 June 2021.

Despite being on notice from 22 March 2022 on (by the filing of the Complainant’s second complaint and written correspondence) of the Complainant’s desire to return to work the Respondent failed to take any steps to facilitate this between that date and 21 June 2022. In failing to do so, the Respondent failed to make reasonable accommodation for the Complainant’s disability.

The Respondent was not on notice of the Complainant’s desire to return to work from the content of the Complainant’s second complaint form (dated 22 March 2022) which stated:

“My employer has failed to as much as have me assessed medically in 5 + years. They have failed to investigate my complaints and have left me on sick leave for all this time. Full submissions to follow.”

The Respondent interpreted this as being a repetition of the Complainant’s first WRC complaint (Adj 31919, brought on 9 February 2021.) The Respondent remained unaware of the Complainant’s desire to return to work until the second WRC hearing date on 18 May 2022 at which Mr. Lowey BL who then represented the Complainant, advised the Adjudicator as part of an application for an adjournment,  that the Complainant wished to return to work. Until that point the Respondent were operating on the basis that the claim for discrimination was historic only.

At that hearing Mr. Lowey referred to correspondence that had been written to the Respondent’s solicitors in May 2020 (in the context of personal injury proceedings) that the Complainant wished to return to work however the Respondent never received these letters and on receipt of them in the days following the hearing on 18 May 2022 the Respondent established that the correspondence had been sent to the solicitors representing the Respondent’s insurers and not the Respondent’s own solicitors and in any event that firm of solicitors (Armstrong and Hegarty) advised them that they had received this correspondence in February 2021 and not in May 2020 and they had not forwarded it to the Respondent solicitors at that time. Furthermore, the Respondent established that a second letter - which had been sent by the Complainant’s solicitors directly to the Complainant’s former manager in the hotel – was sent using a wrong email address.

The Respondent contends that neither letter was received either by them or their solicitors, so it was incorrect for the Complainant to contend that they were on notice of the Complainant’s desire to return to work prior to the hearing on 18 May 2022 and the second Adj complaint did not clarify that the Complainant wishes to return to work.

The Respondents accepts however that from 18 May 2022 hearing, they were on notice of her desire to return to work and in response to this, on 20 June 2022 they invited the Complainant to undergo a medical assessment to establish if the sick certificates that the Complainant had been sending to them every month were correct or whether, despite her own doctor’s certification of unfitness, she was in fact, fit to return to work. The Respondent’s invitation to this medical assessment was dated 20 June 2022 and this WRC complaint issued the following day on 21 June 2022 at 12.25 pm. The invitation was acknowledged by the Complainant’s solicitor on the morning of 21 June 2022 at 9.52am therefore it is incorrect for the Complainant to contend that when the third WRC complaint issued on 21 June 2022 that the Respondent had failed to take steps to facilitate a return to work. In circumstances where the Complainant’s solicitor had accepted the invitation to have the Complainant assessed, before the third WRC complaint had issued,  it is inaccurate to assert that they were not acting on her expressed wish to return to work, even if her doctor was still certifying her as unfit.  

Following receipt of the examination by Medmark in which the opinion of Dr. Colreavy corresponded with the Complainant’s own sick certificates, that the Complainant was unfit to return to work but with further treatment might be able to return to work in 6-8 weeks, the Respondent wrote to the Complainant’s solicitor on 15 August 2022 suggesting that the Complainant attend a back to work meeting with Mr. Kane, a manager of the Respondent hotel which the Complainant’s solicitor accepted on her behalf and which said meeting took place on 6 September 2022.

At the time the meeting with Mr. Kane took place the Complainant confirmed that she was still unfit to return to work and at the Adjudication hearing the Complainant confirmed that this was still the case.

The Respondent denies that they were aware of her desire to return to work until the hearing of 18 May 2022. Following that hearing the Respondent took immediate action to try to locate the correspondence that the Complainant’s then legal advisor stated had been sent. When that correspondence was located, it was clear that neither the Respondent solicitors nor the Respondent had received this correspondence. On 20 June 2022 the Respondent invited the Complainant to be medically assessed. This invitation was acknowledged by the Complainant’s solicitor before the third WRC complaint issued and therefore the contention within this WRC complaint (Adj. 39597) that the Respondent had failed to make reasonable accommodation for her desired return to work is incorrect.

Furthermore given that her own general practitioner had declared her an unfit for work, given that the Medmark assessment had found her as unfit for work and given that in her own evidence at the Adjudication hearing she accepted that she was unfit for work, the Respondent was not obliged to take any further steps to facilitate a return to work. They met with her to discuss the matter but given that it is not disputed that she had been and remained unfit for work, there is no duty to take any step to facilitate her return to work.

Having considered the evidence in this Adjudication I am satisfied that the Complainant has not discharged the onus of proof that she was discriminated against by the Respondent within the period 22 March 2022 and 21 June 2022.

The test to be applied is: Has the Complainant proven on a prima facie basis that there was a failure by the Respondent to make reasonable accommodation for the Complainant’s disability in their conduct between the above dates.

The alleged discriminatory acts are within six months preceding the issue of this complaint so the complaint is not out of time, if an act of discrimination can be proven to have occurred during this time.

I am satisfied that the Respondent was unaware of the Complainant wish to return to work until 18 May 2022. The letter of 25 May 2020 letter was sent to Hegarty and Armstrong Solicitors. The letter dated 3 March 2021 was not received by the Respondent because the wrong email address was used. The WRC was not provided with these letters during either of the first two Adjudication hearings.

I dealt with these letters in the decision in Adj. 37903 and found that given that the 25 May 2020 letter was not sent by the Complainant to Kane Touhy Solicitors, the Respondent’s solicitors and given that the letter dated 3 March 2021 was sent by the Complainant to the wrong email address for the Respondent I am satisfied that neither the Respondent nor Kane Touhy Solicitors received either letter. For the purpose of this decision, I repeat that finding here.

Arising from that I find that the actions of the Respondent need to be considered from 18 May 2022 onwards and not from, as the Complainant contends from 22 March 2022 onwards.

In respect of what occurred from 18 May 2022 onwards I find that prior to the issue of this complaint on 21 June 2022 the Respondent had taken steps to have the Complainant medically examined and the Complainant solicitor acknowledged that.

I also find that the invitation (on 20 June 2022) that the Complainant attend the Medmark examination pre-dated the issue of this complaint on 21 June 2022. 

Arranging for the Complainant to be medically examined was a proactive step taken by the Respondent to assess the Complainant’s capacity to work and this examination was directed by the Respondent despite the Complainant’s own doctors finding that she was unfit for work.

In my view the Respondent only became aware of her desire to return to work on 18 May 2022 following which between that date and the issue of this complaint on 21 June 2022 the only relevant act was that the Respondent arranged a medical examination which confirmed the Complainant’s doctor’s opinion that the Complainant was unfit for work.   In such circumstances no reasonable accommodation for the Complainant’s disability was open to the Respondent to make. The Complainant was, and continues to be, unable to work because the state of her health prevents it.

I find that no prima facie case of discrimination has been proven by the Complainant.

I find that the Complainant was not discriminated against.

Discrimination – failure to make reasonable accommodation when the Complainant is unfit for work