Complainant

Respondent

Parties

Patrick  O'Rourke

De Puy Synthes Ireland Limited

Representatives

Self-Represented

Ms Sarah Daly BL instructed by  Ronan Daly Jermyn 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-00049747-001

11/04/2022

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

CA-00049747-002

11/04/2022

The Complainant was employed as a Line Facilitator from 18 August 2003 to the date of submission of the complaints to the Workplace Relations Commission on 11 April 2022. The Respondent is involved in the manufacture of prosthetic medical devices and the position of Line Facilitator is considered a general role in the manufacturing facility. The Complainant submits that his salary for a 39-hour week, paid on a monthly basis, is €4000 gross; net €3500. The Complainant was on sick leave with severe depression brought on by sleep aponea, chronic fatigue and insomnia for 2.5 years. The Complainant has raised two complaints:

CA-00049747-001 – That on his return from illness, which he claims is a disability for the purposes of this claim, that the Respondent did not afford him reasonable accommodation for his disability, and otherwise discriminated against him in respect to his terms and conditions of employment,  and:-

CA-00049747-002 – That he did not receive equal pay on account of his disability with three named comparators who did the same work but were paid more than him.

The Respondent denies both claims. The Respondent asserts that it fully met its obligations under the Employment Equality Acts 2000-2015 (the Acts) to provide him with reasonable accommodation so as to allow him access to employment and that any difference in pay identified by the Complainant had no connection to the Complainant’s disability.

CA-00049747-001: Reasonable Accommodation and Discrimination

The Complainant gave evidence under oath. He gave details of his disability and how it impacted upon him. He stated that when he came back from work he encountered a new line manager Mr Vincent Kirk, whom he had not met before and felt Mr Kirk was not attentive to his situation. His experience  for six weeks was that  he just fell in doing work with nobody giving him the support  he needed. In that period, he helped out in a ‘loading and blasting’ process that was classed as a Level 2 pay (A higher rate of pay which he had enjoyed prior to sick leave as distinct from Level 1 pay which is a lower rate). He had attended the occupational health doctor in this period where the  Complainant disclosed that he had a shoulder crunching injury which restricted him with some jobs, but that he was cleared for four other jobs.   However, he stated that after a number of weeks  Mr Kirk then offered him a Level I job (Wax Assembly)  but refused to pay him the L2 rate, which was within his competence, and which would have returned  him to the  previous rate he enjoyed  before sick leave The Complainant informed Mr Kirk that he was competent to carry out a “Wheelabrator role” which he could rotate with other roles to give him an L2 rate. Mr Kirk refused him this request , and he had no choice but to tell the Complainant to be in work on the following Monday for the assigned L1 role. The Complainant was so stressed by this attitude of not considering what he believed were roles that he could reasonably carry out, that he went on sick leave in December 2020 with stress related sick leave.     

The Complainant outlined how he made an official grievance of his situation. The grievance meeting was held online but he felt that management would not listen to his proposals about how he could be accommodated in an L2 role. He does not believe that all available L2 jobs were properly explored on his behalf. He described, in evidence, how he has been financially affected by management’s decision and how his health had deteriorated in the meantime. .  

In cross examination the Complainant accepted the exhibited notes from occupational health relating to his meeting with the doctor on 30 September 2021 where it stated that  a phased return to work on reduced hours was advised  and that he was fit for work but should avoid “degating”. He also accepted that he described a legacy shoulder issue to the doctor, up until then an undisclosed shoulder injury to the company, whereby the Complainant declared that he could not carry out “grinding” and “inspect and dress”.

He accepted that in line with the occupational health advice, that his return to work was on a phased basis of 11.5 hours, 13 hours and eventually 23 hours.

CA-00049747-002: Equal Pay

The Complainant named three comparators who work at “Wax Assembly”, an L1 rated job but who receive L2 pay. When pressed in questioning he accepted that the original reasons for the differential in pay was not connected to the grounds of disability.

Outline of the evidence of Mr Vincent Kirk:

Mr Vincent Kirk described himself as a Value Stream Manager with the Respondent. He stated that he was involved in allocating work to the Complainant upon his return from sick leave. He outlined how the difference between L1 and L2 pay rates were assessed in that L2 was rated at a higher rate because of the greater intricacy and dexterity involved in the process. He was advised by occupational health of the limitations on the Complainant’s ability to carry out certain tasks because of a shoulder injury. He stated that the Complainant wanted to carry out the ‘Wheelbrator’ role but that couldn’t be carried out in isolation because he was not fit to rotate with other positions that now formed part of a restructured and more ergonomic manufacturing process. This was a change in process that occurred during the Complainant’s sick leave. He stated that having evaluated all the available roles in line with occupational health advice, especially the limitations imposed by the Complainant’s shoulder injury, “Wax Assembly” was the only viable role he could offer him at the relevant time. 

Mr Jim Reaney, employment relations manager, gave further evidence of why he believed the Complainant could not do a Level 2 job because of his injury.

Respondent Legal Argument:

The Respondent referred to section 2 of the Acts where disability is defined and further opened section 16 where the requirement to give reasonable accommodation to an employee with disability is outlined.

The Respondent opened the Labour Court decision of A Worker v An Employer [2005] ELR 159, where the Court looked at the kind of supports and special treatment that might be required to fulfil an obligation to provide reasonable accommodation where the Court concluded that “. The scope of the duty is determined by what is reasonable, which includes consideration of costs involved. This is an objective test which must have regard to all the circumstances of the particular case.”

The Respondent opened the Labour Court Decision of Noonan Services v A Worker, EDA 11261, where the employee was a Latvian cleaning operative who had sought to change from night shift hours to daytime hours on medical grounds. The change was approved but involved a loss of the night shift allowance premium. The employee then looked to work within a specialist area of the plant (the ‘clean room’) which was paid at the same higher rate as the night work and again this was approved. Following a trial period, the employee was advised that she could not continue the ‘clean room’ role as her English was not at the required standard and she was transferred back to normal day duties which had a lower rate of pay. The employee alleged that in assigning her to duties that attracted a lower rate of pay, the Respondent failed in its obligation to provide her with reasonable accommodation for her disability. The Labour Court emphatically rejected the Complainant’s argument that the Respondent was obliged to maintain her higher nightshift pay rate in circumstances where she was no longer medically fit to undertake night-shift duties. The Court declared: 

“In effect, the import of the Complainant’s position is that she is entitled under the Act to premium rates while working on the general day shift because she enjoyed an enhanced rate while on night work. That raises a question as to the ambit of the obligation imposed on an employer by s.16(3)(b) of the Act. Implicit in the submissions made on behalf of the Complainant is the contention that the Respondent was not only obliged to provide the Complainant with a facility to transfer from night work to day work but that it was also obliged to preserve her previous level of earnings. That contention is unsupported by any authority known to the Court and none was opened to it in the course of the appeal. What is obligated by the relevant statutory provision is that reasonable accommodation be provided where necessary for the purposes referred to in the subsection. This imports into the obligation considerations of objective fairness and proportionality. In that regard the Court has very considerable doubt that the requirement of reasonableness could be relied upon so as to oblige the Respondent to pay the Complainant premium rates in respect of work for which only basic rates are paid to all other employees. Indeed, the frailty of the Complainant’s contention could best be illustrated by considering the paradigm cases of an employee who could not continue to work overtime because of a disability or an employee who sought to work part-time for the same reason. While it could readily be said that s.16(3)(b) of the Act places an obligation on an employer to seriously consider such a request it would be plainly unreasonable to hold that having facilitated the employee the employer is statutorily obliged to maintain his or her previous level of earnings. It follows that when faced with the Complainant’s request to cease night working in December 2006, the Respondent could reasonably have assigned her to the day shift at the appropriate rate and working hours. In such an event the Complainant could not have complained under the Act. In the Court’s view she could not subsequently accrue a cause of action merely because she was given an opportunity to retain her premium rate which, for reasons unrelated to her medical condition, proved to be unsuccessful. For these reasons the Court is satisfied that the Complainant has failed to make out a prima facie case of discrimination on grounds of disability nor has she shown that the Respondent failed to provide her with reasonable accommodation in terms of s.16(3)(b) of the Act.”

The Respondent also opened  HSE v Hannigan, EDA20132, where the Labour Court was asked to consider a case where the employee suffered a significant reduction in her working hours and earnings as a result of her disability. The employee suffered a visual impairment which limited the kind of work that she was capable of fulfilling. The employee argued that the reduction in her working hours was due to a failure of her employer to provide her with suitable alternative duties. The employee argued that the employer should pay her the sum of €30,735.00 in respect of loss of earnings suffered. The Court, in its determination noted that:

“The Supreme Court decision in Nano Nagle School v Daly [2019] IESC 63 held inter alia, that the primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where acquired in a particular case to enable the employee to, inter alia, continuing employment. The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job and the duty to provide reasonable accommodation is not free standing in nature it arises where required in a particular case, to enable the employee to, inter alia, continue in employment.

The Court noted further in Hannigan that:

“In this case, the Complainant was accommodated with alternative positions to suit her needs, however, she contends that the Respondent has failed to ensure she has sufficient hours of work to maintain her salary at its previous level. In that context this case can more properly be seen as turning on the Court's conclusions as to the extent to which the Respondent fulfilled its duty to provide the Complainant with reasonable accommodation for her disability. That involves an objective test and an employer's duty is fulfilled where the measures taken have the effect of allowing the disabled person to continue in employment on the same terms as others.”

 The Court concluded that the Respondent, in its efforts to retain the Complainant following her development of a disability, met its obligations under section 16. The Court rejected the proposition that an employer is under an obligation to maintain an employee’s working hours and/or salary in circumstances where he or she is unable to work full time due to a disability.

“It would be unreasonable to hold that having facilitated the employee the employer is statutorily obliged to maintain his or her previous level of earnings where an employee is not working full time hours. In that regard the Court has considerable doubt that the requirement of reasonableness could be relied upon so as to oblige the Respondent to pay the Complainant for work which is not available”

CA-00049747-001: Reasonable Accommodation and Discrimination.

Application of Legal Principles to the Facts:

 The Respondent accepts that in this instant case the Complainant suffered from a medical condition that gave rise to the Complainant being restricted in the duties which he could undertake. When the Complainant advised he felt ready to return to work following long term sick leave, the Respondent submits that it arranged to have the Complainant medically assessed so as to determine which duties the Complainant could undertake.

The Respondent asserts that the Complainant was then accommodated with a phased return to work on reduced hours and he was assigned to duties in line with the occupational doctor’s medical recommendations.

The Respondent asserts that the Complainant then advised the Respondent of additional restrictions as a result of a historical shoulder complaint.  The Respondent arranged for the Complainant to be medically assessed and revised duties were assigned to him to take account of his shoulder restrictions.

The Respondent submits that its obligation under s.16 of Acts was to take appropriate measures to enable the Complainant to have access to employment. In this case the Respondent engaged with the Complainant and its occupational health advisor in order to identify suitable tasks that were available for the Complainant, in light of his medical restrictions. Having undertaken this exercise, the Complainant was offered a role that provided him with access to employment and which the Complainant agreed was suitable for his physical restrictions.

The Respondent accepts that the role offered to the Complainant involved an approximately 12.5% reduction in pay, when compared to the pay which the Complainant previously earned. However, the Respondent argues that the requirement to provide reasonable accommodation does not require the Respondent to pay the Complainant an enhanced L2 rate for work which ordinarily attracts an L1 payment. The Respondent acknowledge that there are a very limited number of employees (14) who are paid a L2 rate for completing the foundry duties assigned to the Complainant. However, the Respondent asserts that these employees are the beneficiaries of a historical pay arrangement which does not apply to the Complainant’s circumstances. The remaining employees (133) who were in similar work as assigned to the Complainant are paid at the standard L1 rate.

 The Respondent submits that the Complainant was offered a suitable role which would have provided him with access to employment and a gross weekly salary of €760.04. However, the Complainant refused this position on grounds that he was not being paid the gross L2 weekly salary rate of €869.31.

The Respondent asserts that the Complainant was then afforded a full grievance process which allowed him to raise his dissatisfaction in respect of the offer of the L1 pay rate. At the conclusion of the first stage of the process, it was held that there were no available and suitable L2 roles within the Complainant’s normal work stream and that the Complainant was not entitled to L2 pay for the L1 role offered in the wax assembly area.

CA-00049747-002: Equal Pay.

The Respondent submits that while it is accepted that there are a very limited number of workers within the ‘Wax Assembly’ area who are earning an L2 payrate, it  rejects any contention that the difference in pay has any connection to the Complainant’s disability. It is submitted that the Complainant is entitled to be paid the same rate of pay as other workers who are not suffering from a disability. In this case all other workers who have been assigned to the wax assembly area, and who are not subject to the aforementioned historical pay agreement, are paid at the L1 rate. Therefore, the Respondent submits that the Complainant’s equal pay claim should not be upheld.

It was uncontested in this case that the Complainant had a disability as defined under section 2 of the Acts. This was due to two disclosed conditions (1) the  depression brought on by sleep apnoea, chronic fatigue and insomnia which led to sick leave from February 2019 until 18 October 2021 and (2) a shoulder injury that debilitated him in certain tasks after October 2021.

I therefore need to decide if the Respondent discriminated against him in his terms and conditions of employment by not affording him reasonable accommodation for his disability under section 16 of the Acts, and not paying him equal pay under section 29 of the Acts.

CA-00049747-001: Reasonable Accommodation and Discrimination.

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Reasonable accommodation on the grounds of disability is provided for under 16 (3) of the Acts where it states:

(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.

31. The term ‘appropriate measures’ is then defined in section 16(4) as follows:

4) In subsection (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 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;

The Labour Court has given extensive direction in a number of cases  as to the scope of section 16 (3) when deciding what can be reasonably  afforded to a person with a disability who returns to work. Some of these cases were opened by the Respondent at the hearing. I have synopsised the relevant points that I believe are relevant in this case.  In Noonan Services v A Worker EDA 1126  a worker wished to change from nightshift  to dayshift for medical reasons  and claimed that the refusal by the employer to retain her premium shift payment, was discrimination.  The Labour Court emphatically rejected this position when it stated: “ In the Court’s view she could not subsequently accrue a cause of action merely because she was  given an opportunity to retain her premium rate which, for reasons unrelated to her medical condition, proved to be unsuccessful. For these reasons the Court is satisfied that the Complainant has failed to make out a prima facie case of discrimination on grounds of disability nor has she shown that the Respondent failed to provide her with reasonable accommodation in terms of s.16(3)(b) of the Act.”

In HSE v Hannigan, EDA20132, the Complainant could only be facilitated in a job with less hours because of her disability. The Complainant claimed that she should be paid for the full hours and the employer’s failure to do so was a breach of section 16  of the Acts. The Court concluded: “It would be unreasonable to hold that having facilitated the employee the employer is statutorily obliged to maintain his or her previous level of earnings where an employee is not working full time hours. In that regard the Court has considerable doubt that the requirement of reasonableness could be relied upon so as to oblige the Respondent to pay the Complainant for work which is not available”

In the instant case the Complainant was facilitated with a phased return to work and there was convincing evidence given that an examination of all available positions was made. I am satisfied that had he not had a shoulder injury, a path back to a position that would attract the full L2 rate of pay would have been expeditiously arranged. However, the unfortunate restriction of a what was an undisclosed shoulder injury fundamentally diminished his return to available L2 positions at the time. I am minded by the observations of Dr Martin Hogan in his letter of 2 December 2021, which was exhibited by the Respondent and accepted by the Complainant, when the Complainant was being assessed for the wax room. He was passed as medically fit for that position, but the doctor commented that: “He (the Complainant) raised major concerns in relation to the pay rates associated with this station and the way he has been treated. I advised I could not make any judgements one way or the other on those matters and advise that he discussed the situation with HR.” This helps underpin the Complaints position that his claim is essentially about pay rates and not the concept of reasonable accommodation of his disability as understood under section 16 of the Acts which was clarified by the Labour Court, and most recently, in Hannigan where it found  an  an employer is not obliged to pay the Complainant for work that he is not carrying out. The going rate for the “Wax Assembly” is L1 therefore, I find that the offer of this position came within the scope of what can be termed “reasonable accommodation” as defined under the Acts.

For the reasons outlined above, I am satisfied that the Complainant has failed to make out a prima facie case of discrimination on grounds of disability nor has he shown that the Respondent failed to provide him with reasonable accommodation in terms of section 16(3)(b) of the Acts.

CA-00049747-002: Equal Pay.

Entitlement to equal remuneration

Section 39 of the acts deals with equal remuneration under the protective grounds, disability being one:

(1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where D's employer is an associated employer of C's employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

[(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications.]

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.

The Complainant’s case is that though he accepted that the going rate  was   L1  in “Wax Assembly” there were three named  people in that area who were in receipt of the higher L2. It was uncontested evidence that 14 employees  out of a total of 133 in the foundry area received the higher L2 rate because of  historical individual pay agreements. The Complainant accepted in evidence that the difference in pay between those on L1 rates and those in receipt of the old rates from a historical pay agreement, was based on grounds other than disability. I therefore find that the complaint was misconceived and decide that the Complainant has failed to make out a prima facie case of discrimination based on unequal remuneration in terms of section 29 of the Acts.  

CA-00049747-001: Reasonable Accommodation and Discrimination.

For the reasons outlined above, I find that the Complainant has failed to make out a prima facie case of discrimination on grounds of disability nor has he shown that the Respondent failed to provide him with reasonable accommodation in terms of section 16(3)(b) of the Acts. I decide that the Complainant was not discriminated against by the Respondent.

CA-00049747-002: Equal Pay.

For the reasons outlined above, I decide that the Complainant has failed to make out a prima facie case of discrimination based on unequal remuneration in terms of section 29 of the Acts, therefore I am satisfied he was not discriminated against by the Respondent.

Employment Equality Acts 1998-2015, Disability, Reasonable Accommodation, Equal Pay.