Complainant

Respondent

Anonymised Parties

A Quality Analyst 11

A Pharmaceutical Company

Representatives

  Self-Represented

Ms R Mallon BL instructed by Michael Doyle , Solicitor, of A&L Goodbody 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-00043352-001

01/04/2021

The case concerned a complaint under the Employment Equality Act,1998 that the Complainant was discriminated against on the Disability Ground on the specific sub grounds of Failure to Secure Reasonable Accommodation, Victimisation, Access to Training and Harassment. The alleged basis of the Discrimination was the failure of Respondent employer to allow, in a reasonable time frame, the Complainant return to work following a period of extended sick leave.

The employment commenced on the 13th June 2005 and continues.

 The rate of pay was stated to be €4,549 per month for a standard week.

The Complainant presented a series of written submissions and gave extensive Oral testimony to the Hearings.

Her principal witness was Dr.A  who gave a lengthy Oral testimony.

3:1      Summary of events – The Complainant was on Sick leave from the 15th November 2018. There could be no doubt but that she had a qualifying disability under the EE Act,1998.

For ease of reference the Complainant had been in the Laboratory in 2018 and eventually returned to the Documentation Department in 2021.

On the 30th July 2020 she contacted the Respondent employer to arrange a Return to Work. This request was supported by a letter from her GP, Dr A.  The letter dated the 30th July 2020 was crucial to the case and will be referred to extensively.

The Respondent arranged for an Independent Medical review, on their behalf, on the 16th October 2020. The review was conducted by Dr.B.

Dr.B’s report was not received until the 16th February 2021. The Report did not deem the Complainant fit to resume work. The Report allowed for a Three-Month Review which was proposed initially for the 18th March 2021. Dr B, as part of the review, requested the Complainant to complete a number of medical questionnaires. The Complainant felt that the questionnaires were inappropriate and discriminatory. She requested clarifications and follow up consultations on the questionnaires. The March Review did not take place and the case was referred to the WRC on the 1st April 2021 becoming ADJ 32692.

Extensive correspondence followed during March /September between the Complainant and the Respondent.

Eventually a Medical review was arranged with Dr B on the 21st September 2021. He deemed the Complainant fit to resume work on the 1st November 2021 on a phased basis beginning with a two-day week. This was 15 months post her initial request to return on the 30th July 2020.

The Complainant felt very strongly that the behaviours of the Respondent had been grossly discriminatory. Her return to work had been deliberately delayed, effectively Denying her Reasonable Accommodation for her disability.  She had been subjected to a series of the most outrageous prevarications and delays from the Respondent in retaliation for her Personal Injury action.

Dr B had completely misinterpreted Dr A’s letter of June 2020 to arrive at a false fitness conclusion. The delay in producing his report was equally discriminatory and in breach of all Medical Council guidelines. His “incontactability” excuse was effectively a smokescreen as Complainant research showed that he was very much contactable. The Questionnaires proposed in March 2021 were not independent of the Employer Company and were complete unsuitable for the circumstances of the case.

In terms of Victimisation the Complainant   had commenced an Employers Liability/ Personal Injuries action against the Respondent in 2018. The actions of the Respondent could in large manner be seen to be retaliatory against the Complainant for this PI action.

As regards Harassment the Respondent had used an unknown Courier company to deliver letters to the Complainant’s private address. This was not only a major breach of her GDPR rights regarding her private address but was plainly a tactic to harass the Complainant at her home address.

With regard to Loss of Training the Respondent by unnecessarily delaying a proper Return to Work had prevented the Complainant from attending/receiving necessary on-going training in a very technical environment.

In summary the Respondent had failed to provide Reasonable Accommodation for a Disability in refusing to allow a prompt return to work, had victimised the Complainant by their actions, had Harassed her and denied her Access to Training all contrary to the Employment Equality Act ,1998.

3:2         Medical Evidence Dr A Oral Testimony.

Dr A gave a medical history, dating back over several years, for the Complainant. She had been a patient of heightened concern since 2015. In 2018 work related stress had impacted severely on her and Dr A had certified her for Sick Leave on that basis. Various medications were prescribed. A number of Consultant Physicians were also consulted. In Patient treatment had been considered but decided against by the Complainant. A counsellor/Life Coach had been engaged to assist the Complainant.

By the Spring of 2020 the Complainant appeared to be making good progress and was, Dr A, felt able to “consider a return to work albeit to a different Department than where she had been in 2018.”

 Dr A’s letter is dated the 30 July 2020.

Although not stated in the letter Dr A believed that the Laboratory had led to severe stress for the Complainant and the Documentation Department would be less so. The ongoing PI action involving the Laboratory would also be a negative issue. Reduced hours on a phased basis would also be helpful.

Dr A then described her interactions with Dr B for the Respondent. It was agreed that the Complainant, by not allowing direct Doctor to Doctor communication , had complicated matters. Dr B had sent a detailed list of questions to the Complainant to be forwarded to Dr A.

In summary Dr A had felt that a return to work, albeit on a phased basis to a different work environment would be beneficial to the Complainant.

Dr A was extensively cross examined by Ms Mallon BL for the Respondent. Ms. Mallon queried whether the Complainant had actually a Disability namely Clinical Depression. This had never been on any Certificates from Dr A.  In her reply to Dr A described the difficult medical situation involved.   Work-Related Stress was a common medical shorthand in these medical matters. Consultations with Consultants Dr C and Dr D were discussed as was the question of an In Patient stay for the Complainant. Consultant Dr E was then involved who had recommended an In-patient stay in early 2020. The Complainant absolutely refused any suggestion of this.

However, by May 2020 the Complainant had, on her own initiative, come off her medications and appeared to be doing well. Ms Mallon BL inquired of Dr A what she felt when she became aware of this “cold turkey” approach from a patient who had only recently been considered for In patient treatment. Dr replied that all patients differ.

By July, Dr A felt, following a number of consultations with the Complainant, that a consultation/discussion with Respondent HR would be useful regarding a return to work.

The detailed replies that Dr A gave to Dr B in December 2020 were considered with Dr A by Ms Mallon BL.  The replies were based on her observations as the Complainant’s GP. In her view the Complainant was “Fit to consider” a return to work. Dr A was clear that she had never in her letter of the 30 July 2020 actually stated a particular Department.

In her concluding answers to Ms Mallon BL, Dr A stated that while she had a clear preference for a return to a Documentation role, if this was not available and the only option was the Laboratory, she would still support this, albeit reluctantly.

The Adjudication Officer thanked Dr A for her attendance and extensive oral testimony.

3:3        Case Law precedents

The Complainant submitted an extensive list of case law precedents. Emphasis was placed on Case EDA1842 Pfizer Ireland Pharma v Brendan Clemenger and the Supreme Court Case of Daly v Nano Nagle 2019 IESC 63

The Respondent submitted a detailed written submission supported by Oral testimony from Ms K, the HR Director and Dr B, the Occupational Health practitioner. Ms R Mallon BL was the chief spokesperson.

4:1         Opening Procedural /Legal arguments: 

(1)          Estoppel arising from Complainant’s extensive reference to her High Court actions.

The Respondent pointed out that the Complainant made much reference in her submission to her High Court action for a PI claim against the employer. The Respondent argued that this was effectively creating a double action outside of the compass of the Employment Equality Act,1998. By relying on her High Court pleadings, the Complainant was effectively etsopped from using the same materials to support her Equality Claim. Accordingly, the Equality complaint could not proceed. The case of Culkin v Sligo County Council [2017] IECA 326 was referenced in support.

(2)         Time limits and Jurisdiction of Adjudication

In arguments, referenced above in Section 1 of this Adjudication, the Respondent argued that the basis of Adj 32692 was a Last date of Discrimination of the 15th March 2021 on a complaint lodged on the 1st April 2021. The effective “cognisable period” was therefore the six-month period back to the 1st October 2020. The Complainant was insisting on a period from July 2020 to 31st October 2021.

The Complaint could not proceed on the basis suggested.

4:2        Main arguments

The Respondent stated that the Complaint was under the Employment Equality Act ,1998.

As such certain well-established matters were required for a claim to proceed.

Firstly, a prima facie case of Discrimination had to be established.

This required, firstly, that the Complainant demonstrate that she indeed had a recognised disability as set out in the Act.

Secondly all the allegations of Discrimination on the Reasonable Accommodation Grounds, Victimisation, Harassment and Access to Training had to have a concrete basis in proven fact not assumptions or suppositions made by the Complainant.

On both these grounds the Complaint was severely lacking in proper substance and should be dismissed.

Notwithstanding the above points the Respondent set out their case as follows.

4:2:1        Reasonable Accommodation

The Complainant was on sick leave since November 2018, and it was perfectly reasonable for any employer to have a Company medical assessment carried out prior to a return to work. This was arranged with Dr B for the 26th of August 2020. Extensive correspondence followed and the appointment was scheduled finally for the 16th October 2020. The Covid pandemic was in progress and the interview had to take place by telephone. Dr B noted that the Complainant did not agree to him having any direct contact with her Doctors and all communications had to go via herself. Accordingly, Dr B sent a detailed list of questions to Dr A via the Complainant. The Respondent noted that this ban on Doctor-to-Doctor communication was unusual and certainly delayed matters. None the less, Dr A replied to Dr B on the 1st December 2020.

Matters rested until late January 2021 when the Respondent HR Director - Ms R of HR contacted the Complainant to advise that they had been unable to contact Dr B regarding his report. Dr B had ceased to reply to all communications for reasons then unknown. Ms R suggested that if this continued a different Doctor could be sourced. Fortunately, Dr B, who had been seriously ill, returned and issued his report on the 5th February 2021. He did not deem the Complainant then fit for work. He based his report on his own observations & clinical experience  and the replies he had received from Dr A. The question of changing Departments had been considered.

A three-month review was proposed and was suggested, with Dr B,  for the 16th March -again by video link. As part of this review Dr B attached some Medical Questionnaires for Completion by the Complainant. She queried the medical basis of these  Questionnaires and further extensive correspondence followed between the Parties. Eventually the Review took place on the 21st September 2021 with the Complainant being deemed fit to return on a reduced time basis from the Ist November 2021.

The Respondent argued that the delay in having the Return-to-Work review carried out was not a culpable act of discrimination by the Employer. The plain fact was that Dr B had fallen seriously ill in December 2020 and the delay was largely due to this. The actions of the Complainant in restricting Doctor to Doctor communications had also certainly not helped. On the point of Discrimination law, the Respondent pointed out that there was no basis to claim the Complainant had in some way been discriminate against – delays from Dr B would have applied to all patients irrespective of alleged disability or none.

It was clear that Dr B formed his opinions from Communications with Dr A and his own observations. An Employer cannot be faulted for taking the advice of their own Physician even if it contradicted the Complainant’s GP.

This is not Discrimination or a Failure to provide Reasonable Accommodation.

4:2:2        Victimisation

The Respondent pointed out that Victimisation under the Employment Equality Act,1998 (EE Act,1998) had to encompass what were in effect employer acts of,  almost retaliation, by an Employer for complaints made by the Employee under the same EE Act.  The Complainant alleged victimisation in the delays in Dr B report and the handling of same as well as having made a PI claim in 2019. None of these are “protected acts” under the EE Act,1998. Even taking the lodging of Adj 32692 in April 2021 as a protected act the alleged victimisation took place before that date.

The suggestion that Dr B and the Respondent Employer were is some way in a malign relationship to do down the Complainant was absolutely rejected as completely outrageous.

All things considered the complaint of victimisation has no substance.

4:2:3        Harassment

The principal plank of the Complaint argument was that the Respondent HR Director Ms K had used a private Courier Company to deliver some correspondence to the Complainant’s private address. Breaches of the GDPR Regulations regarding addresses were alleged. The Respondent pointed out that the EE Act 1998 was not the pace for GDPR issues. Notwithstanding it was very hard to see how using a reputable Courier Company to deliver a letter could in any be seen as Harassment of an employee as understood by the EE Act of 1998.

4:2:4         Access to Training

The Respondent described this element of the Complaint as completely lacking in substance or necessary detail. No Comparator was mentioned, and no specific courses or training was identified.

4:3         Medical Evidence from Dr B – Occupational Health Consultant.

Dr B gave evidence as to his long background in Occupational Health. He had been an OCH Physician for the Company up to 2015 but had passed this work over to a colleague. However, he still undertook work when asked to do so. He was confident that he was completely impartial in his decisions.

In the case in hand, it was important to understand that it was complex and involved significant mental health issues. He had met, by video link, the Complainant on the 16th of October 2020. The meeting had raised significant worries,” red flags,” in is mind. Ideally, he would have liked to have spoken directly to Dr A, the GP but this was ruled out by the Complainant. An exchange of correspondence, detailed questions for the GP, followed. Dr A had answered these in early December.

Unfortunately, he fell ill with Covid himself and required a Hospital stay. However, by February 2021 he was fir to resume work and completed his Medical OH Report.

It was his view that the Complainant, despite the observations of her GP, remained Unfit for Work. This decision was based on a complete review of the available medical information and his lengthy experience. It was an overall decision and changing Departments as suggested ,while possibly helpful, would not impact on his overall view.

He had indicated that a three-month review would be appropriate. This was scheduled for the end of March 2021. He had indicated that he would be using as clinical tools a number of Psychological/Lifestyle questionnaires. These questionnaires were very standard tools used worldwide by Physicians. The Complainant raised very serious procedural questions regarding the Questionnaires, scoring systems used etc. This was a significant delaying factor.

In addition, he had a Covid relapse in March which rendered him very unwell until mid-August.

Eventually after further correspondence a further Medical OH review took place on the 21st September 2021 which resulted in the Complainant being declared Fit to Return to work, albeit in a limited phased basis , from the 1st November 2021.

Dr B was cross examined by the Complainant.

In summary Dr B stated that the case was very complex with many medical/psychiatric issues. It had required much thought on his part. The refusal of the Complainant to have direct Doctor to Doctor communication with Dr A, her GP was unusual and had made the situation more difficult as well as contributing to delays. Like wise the issues raised with the Standard Questionnaires in March had not helped with the delays.

Dr B vigorously rejected any Complainant suggestion that he was in some way prejudiced or improperly influenced by the Respondent employer in his decisions. He was independent.

He had fallen serious ill due to Covid in December 2020 which had delayed the first Report and had been unwell during the Summer of 2021. This was regrettable but could not be helped.

As regards his “Unavailability” he was now effectively retired in Portugal but maintained links with a Cork based medical consultancy Company.

During the December 2020 /January 2021 period he had been seriously ill and naturally was not responding to e mails/phone calls from the Respondent. There was no suggestion that he had wilfully absented himself to facilitate the Respondent delaying the Medical OH reports.

4:4           Evidence from Ms K HR Director

Ms K gave evidence regarding the large volumes of correspondence that had passed between the Complainant and the Respondent. An OH review was standard practice for an Employee who had not been at work for the lengthy period that the Complainant had been away.

She detailed the frustrations of the Respondent with delays from Dr B and his apparent uncontactability in December 2020 and January 2021.

Covid restrictions had also had a bearing and the Complainant’s insistence at various stages on hard copy mail letters had not helped especially as the HR Office was often closed making receiving/replying to hard mail difficult.

She also pointed out that the Respondent had offered to, in an effort to expedite matters, engage alternative Medical OH physicians. For varying reasons the Complainant had declined, preferring to remain with Dr B.

She absolutely refuted any suggestions that the Respondent was in some form of improper / non-professional arrangement with Dr B to “do down” the Complainant arising from, among other issues, the PI action of the Complainant.

The use of the Courier Company was a standard practice and could not be, in any way, described as a wilful act of Harassment of the Complainant.

4:5        Respondent Summary

Ms Mallon BL summarised the Respondent case as follows

The complaint has serious and fatal procedural issue as regards Time Limits and improper carry over influenced from the PI actions. An attempt was being made to improperly double litigate.

Notwithstanding the above the complaint is under the Employment Equality Act,1998. It has to follow the law and precedent on this basis.

 The complaint lacks a proper prima facie basis, lacks proper evidence and is based on many unsustainable assumptions. The Respondent relied reasonably on Dr B’s Reports. This could not in any way be characterised as Discriminatory.

Under the Employment Equality Act,1998 it cannot succeed.

4:6        Legal Precedents quoted.

The Respondents cited extensive legal precedents but in particular, as also referred to by the Complainant, EDA1842 Pfizer Ireland  Pharma v Brendan Clemenger and the Supreme Court Case of Daly v Nano Nagle 2019 IESC 63, Moriarty v Duchas Dec-E2003-013  and EU Council Directive 2000/78/EC.

Standard cases such as Melbury Developments Limited and Mitchell v Southern Heath Board were also referred to.

Procedural issue

As discussed above Adj 32692 and Adj 38076 were inextricably linked. A separate decision will issue for Adj 38076 but in arriving at a decision for Adj 32692 pragmatic reference has to be made to Adj 38076. The Parties involved, would, in the Adjudicator’s view, be in accordance with this approach.

Voluminous written materials were presented, and two full days of Oral Testimony were heard.

5:1        Introduction – the applicable Law - Reasonable Accommodation.

This complaint was taken under the Employment Equality Act, 1998.

The main complaint was one of a failure to Provide Reasonable Accommodation for a Disability. Section 16 of the Act is therefore in close focus. The Leagl precedents are clear, and much reliance has to be placed on the Supreme Court case of Daly v Nano Nagle 2019 IESC 63.

To assist in arriving at a decision under the Employment Equality Act,1998 a number of questions have to be posed.

1.      Had the Complainant a qualifying Disability?

2.      If Yes to 1 what obligations then arose for the Respondent, taking Section 16 (1) and Section 16 (3) and Nano Nagle into account?

3.      Specifically, was the delay in the return to work, cited /alleged as a Refusal to provide Reasonable Accommodation, a Discriminatory act

5:1:1         A qualifying Disability?

Taking all the extensive Medical evidence presented there could be no doubt that the Complainant had a Disability.

5:1:2         Reasonable Accommodation - Obligations on the Respondent - Section 16 of the Act.

Nature and extent of employer’s obligations in certain cases.

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

[(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.

(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.]

(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 Complainant wrote to the Respondent at the end of July 2020 indicating a desire to return to work or at the very best a desire to engage in discussions regarding her return. She supported her case with Dr A’s  Report of the 30th July 2020 quoted below.

“I feel that she is now fit to consider a return to work and recommend that a transfer to an alternative section would be preferrable on medical grounds. I would be grateful if you would make contact with her regarding same”

This posed a two pronged issue for the Respondent – Allowing for her Disability - Was the Complainant fit generally? and to what extent was this Fitness, if so declared, contingent on a Transfer of Section –“Making a reasonable accommodation” ?

Section 16(1) (b) arises

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

The only possible recourse of the Respondent, to answer these questions, was to Dr B the OH Consultant.

The answer, albeit delayed until February 2021, from Dr B was that the Complainant was not fit to return to work.

Having closely studied all the extensive exchanges of correspondence, Dr A’s answers to Dr B questions and especially the oral Medical Testimony from Dr A and Dr B it was clear that Dr B had made a considered decision.

It is not within the remit of Adjudication Officers to query a considered Medical decision

The question of a phased return and or moving Departments had been considered by Dr B.

Accordingly, the case has to rest.  

Reasonable Accommodation cannot arise where the Complainant is deemed ab initio unfit for Work

In arriving at the above Adjudication decision, a careful review of the existing law was undertaken by the Adjudication Officer and this set out below.

5:1:2:1        Legal Position /Discussion

The question of “Reasonable Accommodation” has been the subject of extensive Legal Precedent much of which was cited by the Parties to the Hearings.  A most useful summary is in Chapter 7 of Employment Equality Law 2nd Edition 2022 by Bolger , Bruton and Kimber. Round Hall Press , 2022

A number of key points are relevant and much reference has to be made to the Supreme Court in the Nano Nagle case.

Reasonable Accommodation is not an absolute construction. Justice Mac Menamin  in Nano Nagle is quoted as stating that the task for a Tribunal or Adjudication Officer is to decide on a basis of “reasonableness and proportionality” , taking Section 16(1) and Section 16(3) into account , whether or not an Employer has properly ,on sound medical advice, deemed a person to be fully  competent or not once reasonable accommodation measures are allowed for.

Most of the case law is concerned with physical disabilities rather than a psychiatric “stress” condition as is the case here. In the oral evidence ,here,  this important distinction was referenced.

Dr B reviewed all the detailed medical evidence, involvement with other Consultants etc  and the communications with Dr A, the GP. In his Oral evidence he referred to certain “Red flags” and symptoms presented by Complainant. It was his opinion that in October 2020 and reported in early February 2021 the Complainant remained Unfit for Work even allowing for changes in work locations -one of the Reasonable Accommodation measures suggested.

Section 7-115 ,the opening paragraph of the section, of Employment Equality Law 2nd Edition 2022 by Bolger Bruton and Kimber. Round Hall Press is worth quoting in this context.

Reasonable accommodation and the Employment Equality Acts

7-115

It is fair to say that the jurisprudence on reasonable accommodation is fairly settled in this country and the obligations placed on employers by virtue of s.16 of the Employment Equality Acts are clearly propounded in the case law of the Equality Tribunal and Labour Court. It is recognised both in the Framework Directive and the Employment Equality Acts that there is no legal obligation on an employer (nor indeed could one be placed) to recruit, train or retain an employee who even with the provision of reasonable accommodation is not able to perform the essential functions of the job concerned.

5:1:3          Was the Delay in Medical reports a Discriminatory situation – a Refusal to provide Reasonable Accommodation.

There can be no doubt that delays were an unfortunate characteristic of this case. However, these delays were not one sided.  Dr B suffered from a severe medical situation in December 2020 and had a relapse in March 2021. The Respondent cannot have any blame or discriminatory intent attached to them as a result. The evidence from Ms K was that they had sought ,through all means, to establish contact with Dr B in January 2021.

Taking Legal precedent across Reasonable Accommodation cases it is very hard to see where a delay in producing a Medical Report, due to a Physician illness, could be seen as discriminatory against an individual. The Physician illness had a general impact across the potential range of patients both well and unwell in all categories. In this case common sense has to accept that the delay while unfortunate as not a Discriminatory act specifically being characterised by the Complainant as “a refusal to provide Reasonable Accommodation.”

5:2         Victimisation.

The law here is basically set out in Section 74(2) of the Employment Equality Act,1998

It essentially requires a Complainant to establish that a negative response action or actions were taken against the Complainant as a result of the Complainant taking a “Protected Act” under the Employment Equality Act,1998 and crucially not under any other Legislation.

Two options arise here -the first is the Persona Injury action begun by the Complainant in 2018 and the second is the lodging of ADJ 32692 on the 1st April 2021.

The Respondent Legal Representative correctly pointed out that “Protected Acts” in an Equality act case have to be Acts related to that Act. A Civil legal case for Personal injury does not satisfy that criterion. Victimisation cannot arise from that context for this complaint.

Adj 32692 was lodged on the 1st April 2021 – the alleged Victimisation was stated to have taken place beforehand. The time frame does not allow for this complaint after the events.

The other issue was the alleged professionally improper relationship between Dr B and the Respondent Company. This was denied vigorously under sworn Oath, by both Dr B and Ms K.

In the absence of concrete evidence, other than assumptions made by the Complainant, this complaint is hard to properly sustain.

5:3        Harassment

The basis of this complaint was essentially the use of a Courier Hand delivery service by the Respondent in 2021 to deliver a letter to the Complainant’s home address. The Complainant alleged that the provision of her home address, without her consent, to a Courier was a breach of the GDPR regulations. This may well be a case to be pursued with the Data Protection Authorities. However, it is not a ground covered by the EE Act,1998 and cannot be adjudicated upon in this case.

5:4        Lack of access to Training.

The Complainant alleged that she was at a loss of appropriate Training for her very technical role with the Respondent during the period from July 2020 to November 2021 – the “disputed” period.

The issue here is that for this period the Complainant was on sick leave and unavailable for Training. Leaving aside this basic aspect, the conversion of this Lack of Access complaint to a proper Equality complaint would need details of courses, comparator staff offered such courses and most importantly a prima facie basis that the Respondent was actively and malignly preventing access.

None of these details have been set out and the complaint cannot be sustained as an Equality complaint.

5:5        Adjudicator Summary

This was a lengthy case ,taken under the Employment Equality Act,1998, with much detailed written material advanced and extensive oral testimony given by Parties and Medical witnesses.

The Oral testimony from Dr A, the Complainant’s GP and Dr B the Occupational Health specialist was crucial. Both were very professional and competent witnesses.

Dr B, the OH Specialist was satisfied that the Complainant was unfit to return to work until November 2021. He was extensively cross examined by the Complainant.

Dr A gave very detailed and most sympathetic evidence regarding the medical history of the Complainant. Dr A also detailed her interactions with queries from Dr B. The issue of changing work locations was considered as this was a central issue in a possible return to work for the Complainant.

An Adjudication Officer is not qualified to query /second guess medical evidence provided it is not manifestly bizarre or irrational. That was clearly not the case here.

Dr B was clearly of the view that the Complainant was not fit, in an overall sense, to return to work even allowing for possible changes of work location – making a Reasonable Accommodation as requested.

Accordingly, as the Complainant was not fit to return to work even allowing for a change of work location, the complaint of a lack of Reasonable Accommodation under the Employment Equality Act,1998 cannot be sustained.

The question of the delays in producing Medical reports from Dr B was also advanced by the Complainant. There was no doubt that this was most undesirable. However, Dr B had experienced serious illness, Covid restrictions had impacted on communications and the Complainant had raised many legitimate queries that delayed matters. On balance it was hard to see the delays as forming a basis for an Equality based complaint.

The other Complaints of Victimisation, Harassment and Lack of Access to Training lack hard evidence and must also be considered not sustainable from an Equality point of view.

Overall and in final summary the complaints as set out in Adj 32692 CA-00043352 do not met the standards required for a successful Employment Equality Act,1998 case.

The case cannot succeed.

Complainant

Respondent

Anonymised Parties

A Quality Analyst 11

A Pharmaceutical Company

Representatives

  Self-Represented

Ms R Mallon BL instructed by Michael Doyle , Solicitor, of A&L Goodbody 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-00043352-001

01/04/2021

The case concerned a complaint under the Employment Equality Act,1998 that the Complainant was discriminated against on the Disability Ground on the specific sub grounds of Failure to Secure Reasonable Accommodation, Victimisation, Access to Training and Harassment. The alleged basis of the Discrimination was the failure of Respondent employer to allow, in a reasonable time frame, the Complainant return to work following a period of extended sick leave.

The employment commenced on the 13th June 2005 and continues.

 The rate of pay was stated to be €4,549 per month for a standard week.

The Complainant presented a series of written submissions and gave extensive Oral testimony to the Hearings.

Her principal witness was Dr.A  who gave a lengthy Oral testimony.

3:1      Summary of events – The Complainant was on Sick leave from the 15th November 2018. There could be no doubt but that she had a qualifying disability under the EE Act,1998.

For ease of reference the Complainant had been in the Laboratory in 2018 and eventually returned to the Documentation Department in 2021.

On the 30th July 2020 she contacted the Respondent employer to arrange a Return to Work. This request was supported by a letter from her GP, Dr A.  The letter dated the 30th July 2020 was crucial to the case and will be referred to extensively.

The Respondent arranged for an Independent Medical review, on their behalf, on the 16th October 2020. The review was conducted by Dr.B.

Dr.B’s report was not received until the 16th February 2021. The Report did not deem the Complainant fit to resume work. The Report allowed for a Three-Month Review which was proposed initially for the 18th March 2021. Dr B, as part of the review, requested the Complainant to complete a number of medical questionnaires. The Complainant felt that the questionnaires were inappropriate and discriminatory. She requested clarifications and follow up consultations on the questionnaires. The March Review did not take place and the case was referred to the WRC on the 1st April 2021 becoming ADJ 32692.

Extensive correspondence followed during March /September between the Complainant and the Respondent.

Eventually a Medical review was arranged with Dr B on the 21st September 2021. He deemed the Complainant fit to resume work on the 1st November 2021 on a phased basis beginning with a two-day week. This was 15 months post her initial request to return on the 30th July 2020.

The Complainant felt very strongly that the behaviours of the Respondent had been grossly discriminatory. Her return to work had been deliberately delayed, effectively Denying her Reasonable Accommodation for her disability.  She had been subjected to a series of the most outrageous prevarications and delays from the Respondent in retaliation for her Personal Injury action.

Dr B had completely misinterpreted Dr A’s letter of June 2020 to arrive at a false fitness conclusion. The delay in producing his report was equally discriminatory and in breach of all Medical Council guidelines. His “incontactability” excuse was effectively a smokescreen as Complainant research showed that he was very much contactable. The Questionnaires proposed in March 2021 were not independent of the Employer Company and were complete unsuitable for the circumstances of the case.

In terms of Victimisation the Complainant   had commenced an Employers Liability/ Personal Injuries action against the Respondent in 2018. The actions of the Respondent could in large manner be seen to be retaliatory against the Complainant for this PI action.

As regards Harassment the Respondent had used an unknown Courier company to deliver letters to the Complainant’s private address. This was not only a major breach of her GDPR rights regarding her private address but was plainly a tactic to harass the Complainant at her home address.

With regard to Loss of Training the Respondent by unnecessarily delaying a proper Return to Work had prevented the Complainant from attending/receiving necessary on-going training in a very technical environment.

In summary the Respondent had failed to provide Reasonable Accommodation for a Disability in refusing to allow a prompt return to work, had victimised the Complainant by their actions, had Harassed her and denied her Access to Training all contrary to the Employment Equality Act ,1998.

3:2         Medical Evidence Dr A Oral Testimony.

Dr A gave a medical history, dating back over several years, for the Complainant. She had been a patient of heightened concern since 2015. In 2018 work related stress had impacted severely on her and Dr A had certified her for Sick Leave on that basis. Various medications were prescribed. A number of Consultant Physicians were also consulted. In Patient treatment had been considered but decided against by the Complainant. A counsellor/Life Coach had been engaged to assist the Complainant.

By the Spring of 2020 the Complainant appeared to be making good progress and was, Dr A, felt able to “consider a return to work albeit to a different Department than where she had been in 2018.”

 Dr A’s letter is dated the 30 July 2020.

Although not stated in the letter Dr A believed that the Laboratory had led to severe stress for the Complainant and the Documentation Department would be less so. The ongoing PI action involving the Laboratory would also be a negative issue. Reduced hours on a phased basis would also be helpful.

Dr A then described her interactions with Dr B for the Respondent. It was agreed that the Complainant, by not allowing direct Doctor to Doctor communication , had complicated matters. Dr B had sent a detailed list of questions to the Complainant to be forwarded to Dr A.

In summary Dr A had felt that a return to work, albeit on a phased basis to a different work environment would be beneficial to the Complainant.

Dr A was extensively cross examined by Ms Mallon BL for the Respondent. Ms. Mallon queried whether the Complainant had actually a Disability namely Clinical Depression. This had never been on any Certificates from Dr A.  In her reply to Dr A described the difficult medical situation involved.   Work-Related Stress was a common medical shorthand in these medical matters. Consultations with Consultants Dr C and Dr D were discussed as was the question of an In Patient stay for the Complainant. Consultant Dr E was then involved who had recommended an In-patient stay in early 2020. The Complainant absolutely refused any suggestion of this.

However, by May 2020 the Complainant had, on her own initiative, come off her medications and appeared to be doing well. Ms Mallon BL inquired of Dr A what she felt when she became aware of this “cold turkey” approach from a patient who had only recently been considered for In patient treatment. Dr replied that all patients differ.

By July, Dr A felt, following a number of consultations with the Complainant, that a consultation/discussion with Respondent HR would be useful regarding a return to work.

The detailed replies that Dr A gave to Dr B in December 2020 were considered with Dr A by Ms Mallon BL.  The replies were based on her observations as the Complainant’s GP. In her view the Complainant was “Fit to consider” a return to work. Dr A was clear that she had never in her letter of the 30 July 2020 actually stated a particular Department.

In her concluding answers to Ms Mallon BL, Dr A stated that while she had a clear preference for a return to a Documentation role, if this was not available and the only option was the Laboratory, she would still support this, albeit reluctantly.

The Adjudication Officer thanked Dr A for her attendance and extensive oral testimony.

3:3        Case Law precedents

The Complainant submitted an extensive list of case law precedents. Emphasis was placed on Case EDA1842 Pfizer Ireland Pharma v Brendan Clemenger and the Supreme Court Case of Daly v Nano Nagle 2019 IESC 63

The Respondent submitted a detailed written submission supported by Oral testimony from Ms K, the HR Director and Dr B, the Occupational Health practitioner. Ms R Mallon BL was the chief spokesperson.

4:1         Opening Procedural /Legal arguments: 

(1)           Estoppel arising from Complainant’s extensive reference to her High Court actions.

The Respondent pointed out that the Complainant made much reference in her submission to her High Court action for a PI claim against the employer. The Respondent argued that this was effectively creating a double action outside of the compass of the Employment Equality Act,1998. By relying on her High Court pleadings, the Complainant was effectively etsopped from using the same materials to support her Equality Claim. Accordingly, the Equality complaint could not proceed. The case of Culkin v Sligo County Council [2017] IECA 326 was referenced in support.

(2)          Time limits and Jurisdiction of Adjudication

In arguments, referenced above in Section 1 of this Adjudication, the Respondent argued that the basis of Adj 32692 was a Last date of Discrimination of the 15th March 2021 on a complaint lodged on the 1st April 2021. The effective “cognisable period” was therefore the six-month period back to the 1st October 2020. The Complainant was insisting on a period from July 2020 to 31st October 2021.

The Complaint could not proceed on the basis suggested.

4:2        Main arguments

The Respondent stated that the Complaint was under the Employment Equality Act ,1998.

As such certain well-established matters were required for a claim to proceed.

Firstly, a prima facie case of Discrimination had to be established.

This required, firstly, that the Complainant demonstrate that she indeed had a recognised disability as set out in the Act.

Secondly all the allegations of Discrimination on the Reasonable Accommodation Grounds, Victimisation, Harassment and Access to Training had to have a concrete basis in proven fact not assumptions or suppositions made by the Complainant.

On both these grounds the Complaint was severely lacking in proper substance and should be dismissed.

Notwithstanding the above points the Respondent set out their case as follows.

4:2:1        Reasonable Accommodation

The Complainant was on sick leave since November 2018, and it was perfectly reasonable for any employer to have a Company medical assessment carried out prior to a return to work. This was arranged with Dr B for the 26th of August 2020. Extensive correspondence followed and the appointment was scheduled finally for the 16th October 2020. The Covid pandemic was in progress and the interview had to take place by telephone. Dr B noted that the Complainant did not agree to him having any direct contact with her Doctors and all communications had to go via herself. Accordingly, Dr B sent a detailed list of questions to Dr A via the Complainant. The Respondent noted that this ban on Doctor-to-Doctor communication was unusual and certainly delayed matters. None the less, Dr A replied to Dr B on the 1st December 2020.

Matters rested until late January 2021 when the Respondent HR Director - Ms R of HR contacted the Complainant to advise that they had been unable to contact Dr B regarding his report. Dr B had ceased to reply to all communications for reasons then unknown. Ms R suggested that if this continued a different Doctor could be sourced. Fortunately, Dr B, who had been seriously ill, returned and issued his report on the 5th February 2021. He did not deem the Complainant then fit for work. He based his report on his own observations & clinical experience  and the replies he had received from Dr A. The question of changing Departments had been considered.

A three-month review was proposed and was suggested, with Dr B,  for the 16th March -again by video link. As part of this review Dr B attached some Medical Questionnaires for Completion by the Complainant. She queried the medical basis of these  Questionnaires and further extensive correspondence followed between the Parties. Eventually the Review took place on the 21st September 2021 with the Complainant being deemed fit to return on a reduced time basis from the Ist November 2021.

The Respondent argued that the delay in having the Return-to-Work review carried out was not a culpable act of discrimination by the Employer. The plain fact was that Dr B had fallen seriously ill in December 2020 and the delay was largely due to this. The actions of the Complainant in restricting Doctor to Doctor communications had also certainly not helped. On the point of Discrimination law, the Respondent pointed out that there was no basis to claim the Complainant had in some way been discriminate against – delays from Dr B would have applied to all patients irrespective of alleged disability or none.

It was clear that Dr B formed his opinions from Communications with Dr A and his own observations. An Employer cannot be faulted for taking the advice of their own Physician even if it contradicted the Complainant’s GP.

This is not Discrimination or a Failure to provide Reasonable Accommodation.

4:2:2        Victimisation

The Respondent pointed out that Victimisation under the Employment Equality Act,1998 (EE Act,1998) had to encompass what were in effect employer acts of,  almost retaliation, by an Employer for complaints made by the Employee under the same EE Act.  The Complainant alleged victimisation in the delays in Dr B report and the handling of same as well as having made a PI claim in 2019. None of these are “protected acts” under the EE Act,1998. Even taking the lodging of Adj 32692 in April 2021 as a protected act the alleged victimisation took place before that date.

The suggestion that Dr B and the Respondent Employer were is some way in a malign relationship to do down the Complainant was absolutely rejected as completely outrageous.

All things considered the complaint of victimisation has no substance.

4:2:3        Harassment

The principal plank of the Complaint argument was that the Respondent HR Director Ms K had used a private Courier Company to deliver some correspondence to the Complainant’s private address. Breaches of the GDPR Regulations regarding addresses were alleged. The Respondent pointed out that the EE Act 1998 was not the pace for GDPR issues. Notwithstanding it was very hard to see how using a reputable Courier Company to deliver a letter could in any be seen as Harassment of an employee as understood by the EE Act of 1998.

4:3:4         Access to Training

The Respondent described this element of the Complaint as completely lacking in substance or necessary detail. No Comparator was mentioned, and no specific courses or training was identified.

4:4         Medical Evidence from Dr B – Occupational Health Consultant.

Dr B gave evidence as to his long background in Occupational Health. He had been an OCH Physician for the Company up to 2015 but had passed this work over to a colleague. However, he still undertook work when asked to do so. He was confident that he was completely impartial in his decisions.

In the case in hand, it was important to understand that it was complex and involved significant mental health issues. He had met, by video link, the Complainant on the 16th of October 2020. The meeting had raised significant worries,” red flags,” in is mind. Ideally, he would have liked to have spoken directly to Dr A, the GP but this was ruled out by the Complainant. An exchange of correspondence, detailed questions for the GP, followed. Dr A had answered these in early December.

Unfortunately, he fell ill with Covid himself and required a Hospital stay. However, by February 2021 he was fir to resume work and completed his Medical OH Report.

It was his view that the Complainant, despite the observations of her GP, remained Unfit for Work. This decision was based on a complete review of the available medical information and his lengthy experience. It was an overall decision and changing Departments as suggested ,while possibly helpful, would not impact on his overall view.

He had indicated that a three-month review would be appropriate. This was scheduled for the end of March 2021. He had indicated that he would be using as clinical tools a number of Psychological/Lifestyle questionnaires. These questionnaires were very standard tools used worldwide by Physicians. The Complainant raised very serious procedural questions regarding the Questionnaires, scoring systems used etc. This was a significant delaying factor.

In addition, he had a Covid relapse in March which rendered him very unwell until mid-August.

Eventually after further correspondence a further Medical OH review took place on the 21st September 2021 which resulted in the Complainant being declared Fit to Return to work, albeit in a limited phased basis , from the 1st November 2021.

Dr B was cross examined by the Complainant.

In summary Dr B stated that the case was very complex with many medical/psychiatric issues. It had required much thought on his part. The refusal of the Complainant to have direct Doctor to Doctor communication with Dr A, her GP was unusual and had made the situation more difficult as well as contributing to delays. Like wise the issues raised with the Standard Questionnaires in March had not helped with the delays.

Dr B vigorously rejected any Complainant suggestion that he was in some way prejudiced or improperly influenced by the Respondent employer in his decisions. He was independent.

He had fallen serious ill due to Covid in December 2020 which had delayed the first Report and had been unwell during the Summer of 2021. This was regrettable but could not be helped.

As regards his “Unavailability” he was now effectively retired in Portugal but maintained links with a Cork based medical consultancy Company.

During the December 2020 /January 2021 period he had been seriously ill and naturally was not responding to e mails/phone calls from the Respondent. There was no suggestion that he had wilfully absented himself to facilitate the Respondent delaying the Medical OH reports.

4:5           Evidence from Ms K HR Director

Ms K gave evidence regarding the large volumes of correspondence that had passed between the Complainant and the Respondent. An OH review was standard practice for an Employee who had not been at work for the lengthy period that the Complainant had been away.

She detailed the frustrations of the Respondent with delays from Dr B and his apparent uncontactability in December 2020 and January 2021.

Covid restrictions had also had a bearing and the Complainant’s insistence at various stages on hard copy mail letters had not helped especially as the HR Office was often closed making receiving/replying to hard mail difficult.

She also pointed out that the Respondent had offered to, in an effort to expedite matters, engage alternative Medical OH physicians. For varying reasons the Complainant had declined, preferring to remain with Dr B.

She absolutely refuted any suggestions that the Respondent was in some form of improper / non-professional arrangement with Dr B to “do down” the Complainant arising from, among other issues, the PI action of the Complainant.

The use of the Courier Company was a standard practice and could not be, in any way, described as a wilful act of Harassment of the Complainant.

4:6        Respondent Summary

Ms Mallon BL summarised the Respondent case as follows

The complaint has serious and fatal procedural issue as regards Time Limits and improper carry over influenced from the PI actions. An attempt was being made to improperly double litigate.

Notwithstanding the above the complaint is under the Employment Equality Act,1998. It has to follow the law and precedent on this basis.

 The complaint lacks a proper prima facie basis, lacks proper evidence and is based on many unsustainable assumptions. The Respondent relied reasonably on Dr B’s Reports. This could not in any way be characterised as Discriminatory.

Under the Employment Equality Act,1998 it cannot succeed.

4:7        Legal Precedents quoted.

The Respondents cited extensive legal precedents but in particular, as also referred to by the Complainant, EDA1842 Pfizer Ireland  Pharma v Brendan Clemenger and the Supreme Court Case of Daly v Nano Nagle 2019 IESC 63, Moriarty v Duchas Dec-E2003-013  and EU Council Directive 2000/78/EC.

Standard cases such as Melbury Developments Limited and Mitchell v Southern Heath Board were also referred to.

Procedural issue

As discussed above Adj 32692 and Adj 38076 were inextricably linked. A separate decision will issue for Adj 38076 but in arriving at a decision for Adj 32692 pragmatic reference has to be made to Adj 38076. The Parties involved, would, in the Adjudicator’s view, be in accordance with this approach.

Voluminous written materials were presented, and two full days of Oral Testimony were heard.

5:1        Introduction – the applicable Law - Reasonable Accommodation.

This complaint was taken under the Employment Equality Act, 1998.

The main complaint was one of a failure to Provide Reasonable Accommodation for a Disability. Section 16 of the Act is therefore in close focus. The Legal precedents are clear, and much reliance has to be placed on the Supreme Court case of Daly v Nano Nagle 2019 IESC 63.

To assist in arriving at a decision under the Employment Equality Act,1998 a number of questions have to be posed.

1.       Had the Complainant a qualifying Disability?

2.       If Yes to 1 what obligations then arose for the Respondent, taking Section 16 (1) and Section 16 (3) and Nano Nagle into account?

3.       Specifically, was the delay in the return to work, cited /alleged as a Refusal to provide Reasonable Accommodation, a Discriminatory act

5:1:1         A qualifying Disability?

Taking all the extensive Medical evidence presented there could be no doubt that the Complainant had a Disability.

5:1:2         Reasonable Accommodation - Obligations on the Respondent - Section 16 of the Act.

Nature and extent of employer’s obligations in certain cases.

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

[(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.

(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.]

(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 Complainant wrote to the Respondent at the end of July 2020 indicating a desire to return to work or at the very best a desire to engage in discussions regarding her return. She supported her case with Dr A’s  Report of the 30th July 2020 quoted below.

“I feel that she is now fit to consider a return to work and recommend that a transfer to an alternative section would be preferrable on medical grounds. I would be grateful if you would make contact with her regarding same”

This posed a two pronged issue for the Respondent – Allowing for her Disability - Was the Complainant fit generally? and to what extent was this Fitness, if so declared, contingent on a Transfer of Section –“Making a reasonable accommodation” ?

Section 16(1) (b) arises

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

The only possible recourse of the Respondent, to answer these questions, was to Dr B the OH Consultant.

The answer, albeit delayed until February 2021, from Dr B was that the Complainant was not fit to return to work.

Having closely studied all the extensive exchanges of correspondence, Dr A’s answers to Dr B questions and especially the oral Medical Testimony from Dr A and Dr B it was clear that Dr B had made a considered decision.

It is not within the remit of Adjudication Officers to query a considered Medical decision

The question of a phased return and or moving Departments had been considered by Dr B.

Accordingly, the case has to rest.  

Reasonable Accommodation cannot arise where the Complainant is deemed ab initio unfit for Work

In arriving at the above Adjudication decision, a careful review of the existing law was undertaken by the Adjudication Officer and this set out below.

5:1:2:1        Legal Position /Discussion

The question of “Reasonable Accommodation” has been the subject of extensive Legal Precedent much of which was cited by the Parties to the Hearings.  A most useful summary is in Chapter 7 of Employment Equality Law 2nd Edition 2022 by Bolger , Bruton and Kimber. Round Hall Press , 2022

A number of key points are relevant and much reference has to be made to the Supreme Court in the Nano Nagle case.

Reasonable Accommodation is not an absolute construction. Justice Mac Menamin  in Nano Nagle is quoted as stating that the task for a Tribunal or Adjudication Officer is to decide on a basis of “reasonableness and proportionality” , taking Section 16(1) and Section 16(3) into account , whether or not an Employer has properly ,on sound medical advice, deemed a person to be fully  competent or not once reasonable accommodation measures are allowed for.

Most of the case law is concerned with physical disabilities rather than a psychiatric “stress” condition as is the case here. In the oral evidence ,here,  this important distinction was referenced.

Dr B reviewed all the detailed medical evidence, involvement with other Consultants etc  and the communications with Dr A, the GP. In his Oral evidence he referred to certain “Red flags” and symptoms presented by Complainant. It was his opinion that in October 2020 and reported in early February 2021 the Complainant remained Unfit for Work even allowing for changes in work locations -one of the Reasonable Accommodation measures suggested.

Section 7-115 ,the opening paragraph of the section, of Employment Equality Law 2nd Edition 2022 by Bolger Bruton and Kimber. Round Hall Press is worth quoting in this context.

Reasonable accommodation and the Employment Equality Acts

7-115

It is fair to say that the jurisprudence on reasonable accommodation is fairly settled in this country and the obligations placed on employers by virtue of s.16 of the Employment Equality Acts are clearly propounded in the case law of the Equality Tribunal and Labour Court. It is recognised both in the Framework Directive and the Employment Equality Acts that there is no legal obligation on an employer (nor indeed could one be placed) to recruit, train or retain an employee who even with the provision of reasonable accommodation is not able to perform the essential functions of the job concerned.

5:1:3          Was the Delay in Medical reports a Discriminatory situation – a Refusal to provide Reasonable Accommodation.

There can be no doubt that delays were an unfortunate characteristic of this case. However, these delays were not one sided.  Dr B suffered from a severe medical situation in December 2020 and had a relapse in March 2021. The Respondent cannot have any blame or discriminatory intent attached to them as a result. The evidence from Ms K was that they had sought ,through all means, to establish contact with Dr B in January 2021.

Taking Legal precedent across Reasonable Accommodation cases it is very hard to see where a delay in producing a Medical Report, due to a Physician illness, could be seen as discriminatory against an individual. The Physician illness had a general impact across the potential range of patients both well and unwell in all categories. In this case common sense has to accept that the delay while unfortunate as not a Discriminatory act specifically being characterised by the Complainant as “a refusal to provide Reasonable Accommodation.”

5:2         Victimisation.

The law here is basically set out in Section 74(2) of the Employment Equality Act,1998

It essentially requires a Complainant to establish that a negative response action or actions were taken against the Complainant as a result of the Complainant taking a “Protected Act” under the Employment Equality Act,1998 and crucially not under any other Legislation.

Two options arise here -the first is the Persona Injury action begun by the Complainant in 2018 and the second is the lodging of ADJ 32692 on the 1st April 2021.

The Respondent Legal Representative correctly pointed out that “Protected Acts” in an Equality act case have to be Acts related to that Act. A Civil legal case for Personal injury does not satisfy that criterion. Victimisation cannot arise from that context for this complaint.

Adj 32692 was lodged on the 1st April 2021 – the alleged Victimisation was stated to have taken place beforehand. The time frame does not allow for this complaint after the events.

The other issue was the alleged professionally improper relationship between Dr B and the Respondent Company. This was denied vigorously under sworn Oath, by both Dr B and Ms K.

In the absence of concrete evidence, other than assumptions made by the Complainant, this complaint is hard to properly sustain.

5:3        Harassment

The basis of this complaint was essentially the use of a Courier Hand delivery service by the Respondent in 2021 to deliver a letter to the Complainant’s home address. The Complainant alleged that the provision of her home address, without her consent, to a Courier was a breach of the GDPR regulations. This may well be a case to be pursued with the Data Protection Authorities. However, it is not a ground covered by the EE Act,1998 and cannot be adjudicated upon in this case.

5:4        Lack of access to Training.

The Complainant alleged that she was at a loss of appropriate Training for her very technical role with the Respondent during the period from July 2020 to November 2021 – the “disputed” period.

The issue here is that for this period the Complainant was on sick leave and unavailable for Training. Leaving aside this basic aspect, the conversion of this Lack of Access complaint to a proper Equality complaint would need details of courses, comparator staff offered such courses and most importantly a prima facie basis that the Respondent was actively and malignly preventing access.

None of these details have been set out and the complaint cannot be sustained as an Equality complaint.

5:5        Adjudicator Summary

This was a lengthy case ,taken under the Employment Equality Act,1998, with much detailed written material advanced and extensive oral testimony given by Parties and Medical witnesses.

The Oral testimony from Dr A, the Complainant’s GP and Dr B the Occupational Health specialist was crucial. Both were very professional and competent witnesses.

Dr B, the OH Specialist was satisfied that the Complainant was unfit to return to work until November 2021. He was extensively cross examined by the Complainant.

Dr A gave very detailed and most sympathetic evidence regarding the medical history of the Complainant. Dr A also detailed her interactions with queries from Dr B. The issue of changing work locations was considered as this was a central issue in a possible return to work for the Complainant.

An Adjudication Officer is not qualified to query /second guess medical evidence provided it is not manifestly bizarre or irrational. That was clearly not the case here.

Dr B was clearly of the view that the Complainant was not fit, in an overall sense, to return to work even allowing for possible changes of work location – making a Reasonable Accommodation as requested.

Accordingly, as the Complainant was not fit to return to work even allowing for a change of work location, the complaint of a lack of Reasonable Accommodation under the Employment Equality Act,1998 cannot be sustained.

The question of the delays in producing Medical reports from Dr B was also advanced by the Complainant. There was no doubt that this was most undesirable. However, Dr B had experienced serious illness, Covid restrictions had impacted on communications and the Complainant had raised many legitimate queries that delayed matters. On balance it was hard to see the delays as forming a basis for an Equality based complaint.

The other Complaints of Victimisation, Harassment and Lack of Access to Training lack hard evidence and must also be considered not sustainable from an Equality point of view.

Overall and in final summary the complaints as set out in Adj 32692 CA-00043352 do not met the standards required for a successful Employment Equality Act,1998 case.

The case cannot succeed.

Equality, Discrimination, Reasonable Accommodation.