Complainant

Respondent

Anonymised Parties

A complainant

A postal distribution company

Representatives

Glenn Cooper Dundon Callanan Solicitors

 David Moran

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-00046517-001

04/10/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under affirmation. No witnesses appeared for the respondent.

The complainant submitted that he has a disability as defined under the Act.  He submitted that he applied to the respondent to work as a Postal Operative but was refused employment on the basis of his disability. 

The complainant submitted that he suffers from an abnormality of the vertebra in his spine and has suffered from chronic pain as a result for many years.  The complainant outlined that he had surgery seven years ago to undergo spinal cord stimulation and that this resulted in significant pain relief and a restoration of function to him.

The complainant submitted that he took part in the recruitment process in January 2021 for a position with the respondent.  This resulted in him being successfully placed on a panel subject to security and medical clearance.

The complainant was assessed by an Occupational Health Advisor (OHA) who interviewed the complainant and compiled a template Occupational Health form for him, took his blood pressure and indicated that he should be assessed by the Chief Medical Officer (CMO).  The complainant submitted that the CMO did not meet with him, nor seek information from his GP or other health professionals and concluded that although he was medically fit, it would be unsafe for him to do heavy manual handling.  The complainant was informed on 21 May 2021 that he had not received the necessary medical clearance for employment.

The complainant submitted that he was not offered employment based upon this and that this amounts to discrimination under the Act.

The complainant referred in its submission to the case of Sweeney v MSL Engineering (ADJ-00030065) as a similar case and a possible guideline case in relation to the quantum of compensation to be awarded.

The respondent submitted that the complainant has not established a prima facie case of discrimination as required under the Employment Equality Acts such as to shift the burden of proof onto the respondent in that there is no evidence from which to infer that he was treated differently because of his disability.  The respondent noted that this complaint did not revolve around reasonable accommodation as this did not form part of the initial complaint and was not raised until a number of weeks prior to the hearing.

The respondent submitted that the complainant was interviewed for a position as a postal officer, was successful and was placed on a panel.  The letter of notification also stated that the complainant would have to pass security and medical clearances.

The complainant was subsequently assessed by the respondent’s Occupational Health advisor who made a decision to refer the case to the Chief Medical Officer (CMO). The CMO then deemed the complainant fit for work but with the caveat that it would be unsafe for him to do heavy manual handling.  The respondent submitted that the complainant was then advised that he had not received the required medical clearance and that the company would no longer be in a position to offer the complainant the role of Postal Operative.

The respondent submitted that the CMO deemed the complainant not fully competent or capable of performing the work of postal operative the respondent suggested that the opinion of the CMO was that it would be unsafe for the complainant to do heavy manual handling and this in turn would impede his ability to carry out the role of postal operative.

The respondent submitted that “the CMO and our OHA are Specialists in Occupational Health who have the knowledge, information and awareness of what exactly is required for the role of Postal Operative.  They are aware of the demand that the role places on an individual’s body climbing in and out of a van over 150 times on average a day, lifting parcels of varying sizes and weight, bending down to put letters in letter boxes and in their professional opinion, it would be unsafe for him to do so.”

The respondent submitted that the Supreme Court Decision in the case of Daly v Nano Nagle School, which is one of the leading cases in these matters noted, at point 89, that the test

“is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee, as this would almost inevitably impose a disproportional burden on an employer”

The respondent submitted that the Supreme Court also stated in its judgement that the duty to provide reasonable accommodation does not require employers to create a different job or create new role for an existing or prospective employee.  But this is exactly what the respondent would be required to do in this instance if it had proceeded with the recruitment of the complainant, as the role of a postal operative requires heavy manual handling as part of the core duties of the role.

The respondent submitted that as a responsible employer it has a duty of care not only to its existing employees, but to any potential employees to ensure their health and safety while at work.  This is exactly what was done in this instance and to have employed the complainant into a role that he was incapable of performing, and that would place his health and safety in jeopardy, would have been negligent on their part.

The respondent held a recruitment competition to form a panel of postal operatives to cover short-term vacancies.  The complainant applied to the respondent for the position but was not offered the position on the basis that he did not pass the pre-employment medical.

The respondent submitted that the complainant has failed to satisfy Section 85A of the Employment Equality Acts/ 1998 – 2015. Section 85A(1) states that “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.”

The respondent then states that there is no evidence from which to infer that he has been treated differently because of his disability before stating that “he failed to satisfy the requirements for the role of Postal Operative on medical grounds”.

Section 2 of the Acts states the following:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

The complainant provided medical assessments to the respondent during the recruitment process and to the WRC in his submissions regarding an abnormality of the vertebrae. The existence of this medical assessment was never challenged by the respondent.  I find that this amounts to the establishment of the existence of a disability as defined under the Acts.  The admission by the respondent that “he failed to satisfy the requirements for the role of Postal Operative on medical grounds” both in submission and in the letter to the complainant telling of his removal from the panel has established to my satisfaction facts from which it may be presumed that there has been discrimination in relation to him.  Accordingly, it falls upon the respondent to prove the contrary.

The complainant submitted medical evidence when applying for the position of postal operative.  The respondent forwarded on this information to its occupational health specialist who assessed the evidence presented and concluded that the complainant was not capable of undertaking the position of postal worker due to his medical condition.  It was accepted by the respondent that the job was not offered to the complainant on the basis of his medical condition, however it was submitted that the respondent is entitled to not offer a position to a person who is not medically able to undertake the role.

Section 16 (1) of the Employment Equality Act, 1998 states as follows:

(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.

The respondent submitted that under Section 16(1)(b) of the Act, it can reject someone who does not pass the pre-employment medical who is not fully capable of undertaking the role. 

The complainant has submitted that he was able and capable to undertake the role of postal operative.  He further submitted that an employer cannot reject someone on the basis of a disability.

Both parties made reference to the Nano Nagle case during their oral submissions at the hearing.  That case concerned a Special Needs Assistant in an educational environment and from the outset that complaint revolved around the provision and consideration of appropriate measures as referred to in Section 16 of the Employment Equality Act.

The current case differs from the Nano Nagle case in that the issue of appropriate measures was not raised when the complaint was taken.  The complainant had the benefit of legal advice from the outset and no reference was made to appropriate measures or reasonable accommodation during the statutory timeframe for lodging a complaint.  The first reference to reasonable accommodation was made some 14 months after the complainant’s removal from the employment panel when a submission dated 19 July 2022 was received by the Workplace Relations Commission.

An additional difference between the current complaint and the Nano Nagle case is that in that case the complainant accepted that she was not capable of undertaking the duties of the role unless reasonable accommodation was considered, whereas in this case, the complainant is insistent that he was capable of undertaking the duties of the role at all times.

It also should be noted that the Nano Nagle case revolved around an employee in a permanent position and the current case revolves around a prospective employee for a temporary position.

The complainant submitted that the respondent did not undertake a proper investigation of what was required in the circumstances.  The respondent in turn, submitted that it was entitled to carry out a pre-employment medical assessment and that the complainant submitted medical reports during the recruitment process.  These were considered by the in-house Occupational Health Advisor who sought a decision from the Chief Medical Officer.  The respondent submitted that both of these experts have a knowledge of the role and core duties of a postal operative working to provide temporary cover.

In its consideration of the issue of reasonable accommodation in the Nano Nagle case, at point 89 MacMenamin J. found that:

89. This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a “disproportionate burden”. If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or “stripped out”. But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, “fully capable of undertaking the duties” attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.

In a judgement that is both partly assenting but also dissenting to that of MacMenamin J,  Charleton J. in the same case noted the following:

14. Any analysis should focus on what happens on the ground. It is not appropriate for any body charged with deciding employment matters to leave out large sections of a narrative given in good faith by an occupational therapist or doctor in order that a particular result may seem attractive. In that regard, the concerns expressed by MacMenamin J are worrying. The test in the legislation is of full competence when reasonable accommodation is made. That test requires a plain analysis of the facts.

…

19. On dismissal from employment for misconduct, a minimal form of fair procedures is required. Some contracts of employment may require more. Where ill-health is in issue then the principles laid out in Humphries v Westwood [2004] 15 ELR 296 and McKevitt v Dublin Bus [2018] IEHC 78 apply. In Humphries, Dunne J noted the following in her analysis of section 16 of the 1998 Act:

This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity.

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

20. In McKevitt, Ní Raifeartaigh J endorsed at paragraph 53 the decision of Lardner J in Bolger v Showerings [1990] ELR 184, which held that where an employer wishes to dismiss an employee with poor health on grounds of incapacity, the onus is on them to show:

i. That it was the incapacity that was the reason for the dismissal;

ii. The reason was substantial;

iii. The employee received fair notice that the question of his dismissal for incapacity was being considered; and

iv. The employee was afforded an opportunity of being heard.

21. The decision not to start the applicant in employment was not due to any misconduct on her part. Procedural rights are thus not engaged in the sense of enabling the right to answer a charge of discreditable conduct. Instead, it was due to the unfortunate occurrence of the disability which the school realised could not enable it to employ the applicant as a special needs assistant. Certainly, had the board of the school sat down with the applicant and discussed the reports in this case, it may be that no case would ever have been taken. But, what was done, in giving the applicant an opportunity to consult with a doctor and to engage with every aspect of the case on the ground as to the effect which her disability had on the highly responsible and physically demanding work of a special needs assistant sufficed as a procedure. The legislation does not demand, and nor should this Court impose, any further requirement such as one which demands some kind of procedure related to any scheme of accommodation that might be reached. It is for an employer to be open to the prospects for engagement and to consider what can in good faith be done.

Although the instant case did not revolve around appropriate measures or reasonable accommodation, a number of factors stand out from the judgements in the Nano Nagle case that are of relevance here.

The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee (para 89, MacMenamin J)

It is not appropriate for any body charged with deciding employment matters to leave out large sections of a narrative given in good faith by an occupational therapist or doctor in order that a particular result may seem attractive (para 14, Charleton J)

This section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the claimant is not fully capable, within the meaning of the section, of performing the duties for which they are employed (para 19 Charleton J citing Dunne J in Humphries)

Section 16(1) is not freestanding, it is subject to s.16(3) (para 102, MacMenamin J)

As part of a pre-employment medical procedure, the complainant gave medical documentation to the respondent.  The documentation was reviewed by the Occupational Health advisor with the complainant and noted that the issue of manual handling should be referred to the Chief Medical Officer for consideration.  The documentation noted that the complainant had chronic back pain for a number of years and had been fitted with a spinal cord stimulator and that since his latest adjustment “he has been relatively assumptomatic (sic)”.  The Chief Medical Officer considered the medical documentation and concluded that while the complainant “is fit for work, it would be unsafe for him to do heavy manual handling”. The complainant was then removed from the panel and notified of his removal.

In his evidence the complainant stated that he sent on a further medical report to the respondent which gave a medical opinion that “management of his failed back surgery syndrome with spinal cord stimulation would necessarily contraindicate working as a postal worker”. However, the complainant also stated that he could not recall who he sent the document to or how he sent it.  The complainant also confirmed that his treatment is a pain management device rather than an indication of absence of pain.  He confirmed that he doesn’t know if he feels pain as he had never turned the device off.

During the complainant’s testimony, he noted that the job of postal worker might consist of “driving, in and out and some manual handling” and it was put to him that it involved “quite a lot of manual handling”.

Having considered the written and oral evidence presented, and in light of the judgements of the Supreme Court Justices, I am satisfied that consideration of medical documentation, submitted by a complainant, by an occupational health advisor and the Chief Medical Officer, with specialised knowledge of the role applied for, could amount to adequate consideration of a disability. 

At point 105, MacMenamin J held as follows:

I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.

The Chief Medical Officer found the complainant fit to work, but he also noted that it would be unsafe for the complainant to do heavy manual handling.  However, there was no assessment of the manual handling element of the role and how much of that was light or heavy, or even a breakdown of how much manual handling the role involved.  The closest we came to an assessment of this element of the role was during cross examination when the complainant indicated that the job might consist of “driving, in and out, and some manual handling” and it was put to him that it involved “quite a lot of manual handling”.  It may be the case that the Chief Medical Officer had such a breakdown available to him, but this was neither asserted nor provided to the Commission.

At point 107, MacMenamin J held as follows:

Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.

This assessment of the role and of the complainant’s capability to undertake the core or other tasks of the role of postal worker is crucial to the case but was not, to my mind, adequately considered or noted, if it was a consideration, by the parties involved in the recruitment process.   In the words of Charleton J at point 14 of his judgement “That test requires a plain analysis of the facts”

Having regard to all the written and oral submissions in relation to this case with particular reference to Section 16(1)(b) of the Act, and the assessment, or otherwise of the complainant’s capability to undertake the role, I find that the complainant was discriminated against.

On the basis that an average postal operative base salary amounts to circa €34,000 p.a. and that the complainant applied for a temporary position to cover short-term vacancies with the respondent, I am satisfied that compensation equivalent to three months’ salary i.e. €8500 in respect of the effects of discrimination would be appropriate in the circumstances of this case.

Having regard to all the written and oral submissions made in relation to this complaint, my decision is that the complainant was discriminated against, and I award him compensation in the amount of €8500 which I consider to be appropriate in the circumstances of this case.

Employment Equality Act – disability – S 16(1)(b) capability to undertake role – medical evidence – no assessment of the role linked to the medical decision – award of compensation