Complainant

Respondent

Parties

Tracey  Ahern

Department Of Employment Affairs And Social Protection

Representatives

Donna Mooney of Forsa

Stephen Hanaphy BL instructed by  Aoife Burke of the Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049391-001

29/03/2022

The Complainant has been a career civil servant for much of her working life. She worked for the Revenue Commissioners before joining the Respondent department in 2017 as a Higher Executive Officer.

The Complainant has suffered from a number medical conditions which constitute disabilities under the Employment Equality Acts. These conditions developed further in 2019 and required her to have close access to a bathroom, amongst other things.

The Complainant went on sick leave from 31st of January 2019 until the 29th of April 2020 when she was facilitated with remote working, partially on the basis of the covid 19 pandemic and her having heightened risk as to her medical conditions.

When being onboarded for remote working the Complainant initially had to attend on site for a number of days. She attended the Respondent’s officer in Nenagh for this purpose, though she was assigned to the office in Thurles. The office in Nenagh was particularly suited to her needs as it was a single occupancy room with toilet facilities. It had previously been a medical officer’s room used for assessments. 

The Complainant sought to continue this arrangement and to be permanently assigned with that office in Nenagh, working in a blended way between her home address and that office. She had a preference for blended working both for logistical reasons related to her work and to avoid the isolation that can come with permanent home working. This was denied as she was assigned to Thurles and Nenagh expected to need to use that office for a member of staff assigned to Nenagh. 

The Complainant continued working remotely full-time until in January 2021 the Respondent sought to move her back to the Thurles office on a blended basis. This was due to changes in the Respondent’s workflow and the need for the Complainant to take on work which could not be done remotely. The Complainant sought to be allowed work from the office in Nenagh but this was denied by the Respondent.

Ultimately the Complainant went on long term sick leave.

With the assistance of her union, Forsa, she submitted a complaint under the Employment Equality Act on the 29th of March 2022.

A hearing was held into this matter. The Complainant attended with Ms. Mooney of Forsa and gave evidence under affirmation.

The Respondent was represented by Mr. Stephen Hanaphy BL instructed by the CSSO. Ms Catherine Birmingham, an AP HR officer for the Respondent, attended and gave evidence under affirmation. Mr. Dermot Sheridan, the PO responsible for workforce planning, gave evidence under affirmation.

Each witness was cross examined. While I considered the evidence of each witness it should be noted that I do not provide a comprehensive summary of their evidence in this decision. Rather I have confined myself to recounting their evidence where it has become relevant to my decision.  

The Complainant gave detailed evidence as to her needs at work. While the Respondent did engage with her at times they examined matters regarding her health without full regard to the medical information that she had submitted and her concerns. She cannot work on site in a place that cannot facilitate easy and quick access to a bathroom.

She sought to raise these matters internally and utilised the grievance procedure. However, this did not change anything. She would like to return to work and they have failed to provide her with reasonable accommodation for her disability. She had no issue with sharing an office or working in a less modern building. Her key consideration was proximity to a bathroom, this accessibility appeared not to be available in Thurles and though it was available in Nenagh her requests to go there were rejected out of hand.

The Complainant’s Union furnished detailed written submissions.

Both Mr Sheridan and Ms Birmingham gave detailed evidence as to the Respondent’s policies and their attempts to facilitate the Complainant. Ms Birmingham pointed out the lengths the Respondent went to in securing her a laptop during the internal shortage caused by the mass move to work from home during Covid-19.

Mr Sheridan gave evidence as to the level of consideration he gave to the Complainant’s needs. He toured the Respondent’s building in Thurles and identified an appropriate office. The Respondent was willing to designate a bathroom for the Complainant’s sole use. She had raised concerns about being on the first floor and reliant on a lift in case of a fire however he had addressed these matters by reference to the evac chair available.

The Respondent indicated that inter office transfers can be very difficult to arrange. Nenagh had staff assigned to it who were coming back to more and more on-site work as the pandemic lifted.

The Respondent’s Barrister furnished detailed written submissions.

It is clear that the Complainant is affected by a number of disabilities and enjoys the protections of the Employment Equality Acts under the disability ground. She alleges discrimination due to disability and that the Respondent failed to provide him with reasonable accommodation.

Discrimination

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of the various grounds covered in the acts, in this case disability is the relevant ground.

The most relevant parts of Sections 6 and 8 are detailed below.

6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

….

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

……

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee…..

Reasonable Accommodation

Section 16 outlines employers’ obligations to provide reasonable accommodation to employees with disabilities. The most relevant parts of Section 16 are outlined below:

(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.

Burden of Proof and Prima Facia Case

Section 85A of the Employment Equality Acts 1998 to 2015 provides 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.

As such the burden of proof in this matter is on the Complainant. If the Complainant’s case meets the threshold set out above then the burden of proof is reversed and it is on the Respondent to rebut the above presumption of discrimination.

The Complainant has explained that her medical condition is complex and evolving. She sees the Respondent’s failure to afford her an office, suitably close to a bathroom, while also insisting that she attend the office at least part of the time, as unreasonable and a cause of significant stress. It is not the only factor keeping her out of work, but it is a factor.

As such she argues that she has been discriminated because she was not able to attend work due to her employer’s failure to provide reasonable accommodation under Section 16 of the acts. Her comparator for the purposes of Section 6 would appear to be a hypothetical comparator who does not have a disability and who is able to attend work as normal.

I am satisfied the Respondent was on notice of the Complainant’s disability and her position that requiring her to attend to the Thurles office would necessitate her working from an office which was in her view is too far from the bathroom.

When the Respondent made clear that the only option was the Thurles office and that she could not work remotely she then went on sick leave.

On review of the above I am satisfied that there is a prima facia case that the Complainant was discriminated against contrary to the Acts.

Decision

Section 16 above is clear that the Respondent has a proactive obligation to provide appropriate measures, so long as these are not disproportionate burdens. To rebut the presumption outlined about the Respondent must be able to demonstrate they provided or attempted to provide appropriate measures.

In September 2021 it is clear that the Respondent undertook a detailed exercise, ultimately led by Mr Sheridan which attempted to facilitate the Complainant in remaining at work. While I agree there was significant work undertaken by Mr Sheridan and his colleagues to facilitate the Complainant, their approach was deficient in some respects.

The first and most obvious error is the failure of the Respondent to obtain a medical report from the CMO accessing the Complainant’s disabilities and what appropriate measures needed to be undertaken for her to have the opportunity to work in the office, at least partially. The Respondent’s evidence appears to place the responsibility for this with the absence management team but regardless of this origin this omission led to key misunderstandings in how the Respondent proceeded. These misunderstandings have clearly persisted until the hearing of this matter.

Mr Sheridan, in his evidence, explained that the Nenagh office has been brought out of scope as a potential location to facilitate the Complainant’s needs because it is too busy and not suitably modern nor private. However, the Complainant was clear in evidence that the primary issue she had was not the size nor modernity of the facilities available to her but whether they would be suitably close to her desk so she might reach them quickly despite her mobility issues.

This is supported by the GP report she provided at the start of 2021. She identified three places in Nenagh which would work for this purpose and it is apparent that the Respondent only considered one, the medical assessors room which she had used previously. While this room may have been unavailable there remains a lack of clarity as to whether the other options were and are viable, particularly in the context of blending working where desks are not necessarily utilised each day and can change hands over the course of the week. It is also not clear what level of importance the Respondent placed on the fact that Nenagh was not the Complainant’s base location. They have certainly failed to provide any specific evidence as to why allowing the Complainant to work from a different location to her base location in Thurles would constitute a disproportionate burden. This is quite surprising as the issue features again and again in the Respondent’s replies to the Complainant. 

Despite the Complainant having been on sick leave for nearly a year and a half it was disclosed to her for the first time in the hearing that the Respondent may be able to offer full time remote working due to recent changes in how work is distributed in the “regions.”

The Respondent relies on the fact that the fact that the CMO has stated that the Complainant is medically unfit to work as a reason they did not engage with the Complainant further on potential accommodations to bring her back to work. However, on review of the evidence they clearly did not ask the CMO to assess her ability to work with accommodations. This is despite the fact that they are in receipt of the Complainant’s WRC complaint from March 2022 which states unambiguously that “she is unable to return to work due to the prospect of attending the office.”

It is clear that the Complainant has been seeking further engagement from the Respondent so that she might be reasonably accommodated in returning to work. It is also clear that the Respondent has opted to not engage and essentially views the matter as closed following the exercise undertaken by Mr Sheridan in September 2021.

The Respondent has failed to properly consider the Complainant’s disability and associated needs when conducting their own assessments as to what office and supports they should and could offer her. As such they have failed to rebut the presumption of discrimination outlined above.

Redress

Section 82 subsection 1 of the Employment Equality Acts outline the redress which may be ordered by a WRC Adjudicator. The relevant options would appear to be:

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(e) an order that a person or persons specified in the order take a course of action which is so specified.

Subsection 4 outlines that the maximum amount which may be ordered by way of compensation under subsection (1)(c) is

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

The Complainant’s income has been reduced to TRR, that is a lower form of public sector long term sick pay, while she has been absent for over a year. Though I find that the Respondent has breached the Employment Equality Acts I do not think it would be reasonable for me to simply presume that, if they had examined the Complainant’s condition and needs appropriately, she would necessarily have successfully returned to work for that entire time. The loss she suffered due to the breach of the Acts is unclear but I am satisfied that the breach contributed to her extensive sick leave which clearly resulted in a significant loss of income.

In the circumstances I believe limited compensation of €10,000 is appropriate.

More importantly the Respondent must now take appropriate measures to enable the Complainant to return to work. To do this they are required to establish what appropriate measure are actually available to the parties. For the avoidance of doubt, this exercise should involve the Respondent engaging with the Complainant and establishing an up to date understanding of the Complainant’s medical situation and any needs she may have related to her disabilities. Once those needs are understood the Respondent can then examine what options are reasonably open to them and what might constitute a disproportionate burden, with reference to the Employment Equality Act.

I find that the complaint is well founded.

I direct the Respondent to pay the Complainant compensation in the amount of €10,000.

I direct the Respondent to take any appropriate measures to enable the Complainant to return to work, unless those measures would impose a disproportionate burden on the Respondent.