ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030391
Parties:
| Complainant | Respondent |
Parties | Jacinta Kenny | An Garda Síochána |
Representatives | ESA Consultants | Desmond Ryan BL instructed by Lorraine Williams Chief State Solicitor’s Office |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040838-001 | 06/11/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040839-001 | 06/11/2020 |
Dates of Adjudication Hearing: 28/02/2023 05/05/2023 and 07/06/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On date the complainant referred a complaint to the Workplace Relations Commission pursuant to the Employment Equality Act. The complaint was scheduled for adjudication on several dates, and proceeded to hearing on three dates: 28th February, 5th May and 7th June 2023.
The complainant gave evidence and was represented by Joe Bolger, ESA Consultants. The complainant was accompanied by representatives of the Garda Representative Association. The respondent was represented by Desmond Ryan BL instructed by Lorraine Williams, Chief State Solicitor’s Office. The following witnesses gave evidence for the respondent: Yvonne Cooke, Superintendent Brian Halligan, Dr. Oghenovo Oghuvbu Chief Medical Officer, Chief Superintendent Padraic Jones and Chief Superintendent Dennis Ferry.
In accordance with section 79 of the Employment Equality Acts, 1998 - 2021following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant asserts that she has been discriminated against on grounds of her disability as the Garda Commissioner has not signed her warrant of promotion to the rank of Sergeant. The respondent denies the claim.
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Summary of Complainant’s Case:
Evidence of Jacinta Kenny The complainant outlined that in 2017 she went through a promotion process. Everyone else who reached the stage of the competition she reached was promoted to Sergeant. She was the only candidate subjected to an assessment. The complainant said that she was looking to be promoted as a course of action or substantial compensation. A message needed to be sent out for people in her circumstances. The complainant outlined that she has a Degree in Biological Sciences and worked in marine biology. She was subsequently employed in a warranted role at Dublin City Council where she prosecuted waste management offences in court. She left this role to join the respondent. The complainant has worked for the respondent for 16 years and had an exemplary record. She had worked in back office roles in named Garda stations and also worked on particular projects. They included the Fixed Charge Notice project and the new Garda roster project. She reported to a named Superintendent who was also not frontline. She said that all the Sergeants she reported to were also not frontline. The complainant said that there was no mention of being frontline in the ad for the role. She was assessed per the competencies and marked with the highest scores. The scores allowed her to go to interview and there were two rounds of interviews. At the second round, she was not deemed suitable, but the Commissioner then deemed that all those who got through round 1, but not round 2 would be deemed eligible for promotion. The complainant said that she was then phoned to say that there was a hold-up in respect of her promotion. In March 2019, she attended her regular, yearly consultation with the Chief Medical Officer. The complainant was informed at the consultation that the office of the CMO had no role in the promotion and she was referred to the Disability Officer. The named Disability Officer informed the complainant that she had no role in respect of Garda members, just with civilian staff. The complainant then engaged the three stages of the grievance procedure. Her colleagues who applied for promotion and reached the same stage were promoted; she was not. She said that the respondent has not provided her with reasonable accommodation in allowing her promotion. The complainant had understood that the March 2023 assessment by the assistant CMO was to be about accommodation for the promotion. The assistant CMO informed her that he had been given a document which asked him to assess her ability to do ‘policing duties’. The assistant CMO held that the accommodations in place were suitable. The assistant CMO said that it was not his role to determine whether she was eligible for promotion. The complainant outlined that the promotion was worth around €10,000 per year to her. She was now caught in the doldrums. She would have liked to be further along in her career than as present. She outlined that she wished to progress in the respondent. Some of the cohort of colleagues promoted to Sergeant from the 2017 competition are now Inspectors or Superintendents. The complainant said that she had ‘raised her hand’ to disclose her illness and had understood that there was a career path for her. She said that she felt duped. She has worked with between 8 to 10 non-frontline Sergeants. She said that ‘frontline’ meant interactions with members of the public. She said that the risk for her was re-traumatisation, in particular in situations over which she had less control. The complainant had initially worked in stations and then worked from home. She worked on project coordination roles. The complainant outlined that she has Borderline Personality Disorder. Her emotions could slide. She did cognitive behaviour therapy which gave her appropriate coping techniques. She has anxiety and agoraphobia. She works from home because of a physical condition, which includes migraines and an inability to swallow. Working from home is part of her current accommodation and part of this claim. Cross-examination of the complainant The complainant accepted that she had been given extensive cross-examination. She accepted that the role of the Commissioner was to confirm the warrant. In respect of the portion of the Garda Code opened at the hearing, the complainant said that there were 15 other responsibilities. The complainant said that not all Sergeants did all roles a) to k) in the Code but accepted that ‘should’ imposed an obligation. She did not see these duties as blocks. It was put to the complainant that it was appropriate for the respondent to assess the situation of someone working from home. It was put to the complainant that the referral on the 27th March 2023 was appropriate. It was put to the complainant that the 27th March to the 5th May did not represent inordinate delay. The complainant said that there has been delay since 2019. She accepted that the outcome of the process was that she was deemed eligible for promotion but that the decision to promote rests with the Commissioner. She believed that she was still on the panel, and it was unusual for a panel to stay open for so long. She said that she was the only person on this panel blocked from promotion because of a disability and not because of, say, a disciplinary issue. In respect of the occupational finding of her ‘reduced profile of policing work’, the complainant said that she had not discussed at the consultation the roles she had done. She said that her current, full-time work was a policing role. She said that this was a ‘different’ profile and not a ‘reduced’ profile. The complainant accepted that the assistant CMO had said that the current accommodation would continue. She accepted that she will need ongoing accommodation. It was put to the complainant that the 2013 conclusion of ‘unlikely to police on the frontline’ should be part of the consideration for promotion; the complainant replied that this was always the case, but the Commissioner should have been reflecting on this since 2019. The complainant said that it felt like she was in no-man’s land so did not apply for later Sergeant competitions. The complainant said that a sideways move she explored was blocked by the respondent. This occurred in September 2022. Further evidence of the complainant In further evidence on the second day of hearing, the complainant addressed the evidence of Chief Superintendent Padraic Jones. They met on the 3rd July 2019, and this was their first meeting. The complainant told him that she had anxiety about driving new routes. She said that she would research every part of a new route. The complainant said that at no point did she say that she would drive at people. She said that she has never said this or felt this. The complainant told Chief Superintendent Padraic Jones that she would take on more work and was happy to support the office. The complainant said that in her current role, she is the ‘hub’ in the office, and she organised the flow of work and present on the emails circulated amongst colleagues. It was Superintendent James Keane who asked her whether she would work from home when he was sick. He had sought approval from Chief Superintendent McLoughlin. This was not a haphazard arrangement. She reported directly to an Inspector who retired and then to Sergeant Leahy. They were all office based. She was then office based arising from her mental illnesses but was able to travel to conferences for example in the UK. The complainant said that she received a phone call from Superintendent Dave Butler to transfer to his office. She knew him and he was Sergeant in the office when she initially became unwell. The complainant was excited by the new work. He told her that he knew she would be working from home. This transfer had the approval of Assistant Commissioner Hillman, and she, Chief Superintendent Padraic Jones, Chief Superintendent Dennis Ferry and HR were copied in the email. The complainant said that she was approached by a senior colleague every time she moved project. This occurred when she moved both to the Fixed Notice and the Roster project. She never completed a D19 form. It was put to the complainant that the project referred to by Superintendent Butler was a discrete project; she accepted that this was a temporary transfer position, but this would be a permanent role. Superintendent Butler had said that there would be a position of Sergeant available. Closing of the complainant The complainant outlined that the evidence points to a pattern of discrimination. The respondent was required to show hardship in the light of its size and resources. The complainant is an excellent employee. It was not critical for all Sergeants to be frontline. The CMO did not say that it was absolute that a Sergeant be frontline. The complainant achieved excellent scores in the interview process and is an excellent employee. The Commissioner states that he needs a medical document to promote the complainant. The requirement to ask the complainant to attend further assessments was a sanction. She was singled out for medical assessment and there is the delay. The complainant is the only person with a disability sent to assessment and phoned about a frontline role. Her medical condition was not an impediment. This has affected the complainant financially but also the impact of being told she could not progress. |
Summary of Respondent’s Case:
Evidence of Yvonne Cooke Ms Cooke said that she was the acting Executive Director of Human Resources. She was a Chartered Psychologist and had previous senior HR experience in policing with the PSNI. She had advised as to the reasonable accommodation to be provided for colleagues. A promotion process was to establish eligibility for promotion and nothing more. The process identifies that a candidate can be considered for promotion and nothing more. Ms Cooke said that working from home was unusual in policing and this was a unique case. She said that everything should be considered in respect of reasonable accommodation and disability. She said that working from home as a Sergeant might be problematic. There was a challenge whether a Sergeant could work from home. Ms Cooke said that ‘frontline duty’ ordinarily meant deployment with the public. The respondent required as many members as possible to be able to be deployed in the field. There would be Sergeants that are not deployed in public roles but who could be called upon. Ms Cooke said that they could consider a Sergeant not being frontline but working from home was different. It was normal practice that a panel would close when a new competition started and this panel staying open was unusual. Ms Cooke said that in her experience agoraphobia was a challenging condition. This undermined the complainant’s ability to supervise colleagues and to attend court. Ms Cooke said that not being able to be frontline was not a barrier to promotion but in this case the issue was not being frontline and having to work from home. She was not aware of any issue with a sideways move for the complainant. In cross-examination, Ms Cooke outlined that she had dealt with many promotion competitions. This was a unique set of circumstances, and the norm was that a panel ended when a new one was constituted. It was unique as it involved full-time working from home. She was not aware of any Garda working at home full-time as an accommodation. Her understanding was that it was not normal to allow full-time working from home for a sworn member. Ms Cooke said that she asked that the respondent dealt with this promotion as fast as possible and to refer it to the Commissioner as quickly as possible. The Garda is a unitary force, so it is preferable that the majority are deployable in the field. She outlined that the main issue was not the complainant’s ability to be frontline. A non-frontline Sergeant would be expected to be called to the frontline, but there were exemptions. Evidence of Superintendent Brian Halligan In evidence, Superintendent Halligan outlined that he was in charge of the roster project and in the role since October 2022. He is the complainant’s line manager and dealt with her by phone and email. The complainant is experienced and expert in the roll-out of the roster project. He said that the complainant was working effectively in the role but there was a limitation of what he could ask her. He did not ask her to attend a meeting at the station. In cross-examination, Superintendent Halligan said that he held about two meetings a week regarding the roll-out of the roster which the complainant could not attend. He was aware of other Gardai who were not frontline. He said that while there were backend roles, they were not significant. Evidence of the Dr. Oghenovo Oghuvbu Chief Medical Officer The Chief Medical Officer said that he covered a variety of roles, and this included reassuring the Commissioner of the deployability and workability of members and their welfare. He oversaw referrals to assistant CMOs and had read the complainant’s file in advance of the hearing. The Chief Medical Officer said that it was unique for a Garda to work from home as a long term accommodation. They had recommended working from home during the pandemic, but this was limited to the pandemic. The Chief Medical Officer said that there were delays in seeing the complainant’s medical records, but they were seen by the assistant CMO prior to the report. It was usual to update advice as new evidence was received. The specialist reports did not change the advice previously given. The Chief Medical Officer said that there was always the possibility of confrontation in policing. They asked whether the person deployed could be deployed across the whole gamut of policing. Where they were not, could part of the role be sliced off for them. They considered what they could do with the impairment. It was not possible that all members could be frontline. Working from home was an additional restriction as it excluded attending the station or court. The Chief Medical Officer said that the complainant’s clinical profile had not changed since 2018. A Sergeant’s role included supervising teams. In devising ‘reasonably practicable advice’, it had to be implementable. He accepted that the complainant had carried out the roster project role. He accepted that he had no role in promotions. In cross-examination, the Chief Medical Officer said they have general role profiles, and it was open for management to provide additional role specific information. The Chief Medical Officer had only encountered working from home in the respondent in the context of the pandemic. The Chief Medical Officer cited the busy occasions of the visits to Ireland of President Obama and the Queen of England. He said that on these occasions, it was only those who were medically exempt that were excluded from the frontline. The Chief Medical Officer said that the complainant was doing Garda duties but not the full range of policing duties. He said that the complainant might be able to do a limited Sergeant role. Any accommodation had to be reasonable and practicable. In respect of the Sergeant role, this depended on what accommodation with respondent could provide. The February 2023 report formed part of the consultation of the 27th March and the April report did not change anything, Evidence of Chief Superintendent Padraic Jones In 2019, Chief Superintendent Padraic Jones was promoted to Superintendent and assigned to the roster project. This was a blended office of staff and Garda members and he met everyone. He understood that the complainant was not based in the office. He noted that the complainant was routinely working from home, and this was a cause of concern to him as a manager and for her own well-being. This was a local arrangement of his predecessor, and this was irregular and unheard of in his experience. Working from home meant that there could be no ad hoc interactions. There was no official policy on working from home. Chief Superintendent Padraic Jones said that the complainant completed every task to a very high standard. He wanted to involve the complainant in attending meetings as part of the project. He mentioned this as an option and the complainant said that she could not do this. This was for mental and psychological reasons, and this caused him grave concerns. This conversation took place in August 2019. It is still unheard of to be working at home at least pre Covid. Chief Superintendent Padraic Jones said that the complainant never applied to him for a transfer. The regular process was never invoked and there is a D19 form to fill in. Specialist positions are filled by competitive interview and not by a D19. He liaised with the complainant over the promotion process on administrative matters. Cross examination of Chief Superintendent Padraic Jones Chief Superintendent Padraic Jones said that the CMO provides advice on accommodating disabilities and issues guidance for the hours and duties of individual members. He was not aware of any member who is not frontline. He did not recall the phone call with the complainant of the 20th January 2020 about her working frontline. He was providing the complainant with updates on the promotion. This was a unique competition as unsuccessful candidates were deemed promoted and this had not happened before. Chief Superintendent Padraic Jones was asked about his concerns on taking up the role. He said that he tried to meet the staff on taking up the role. He realised that he had not met the complainant and learnt that she was working from home. It was difficult to engage with the complainant routinely on work issues and it was difficult for me to assign work. He said that the complainant’s work was of the highest standard. He said that he was not getting the same amount of work from someone working from home than someone in the office, for example attending meetings and roll outs. All the Garda members would have done this. Chief Superintendent Padraic Jones said that he sought a professional viewpoint on the complainant’s duties by engaging with the CMO. The complainant had a local arrangement with his predecessor so he referred it to the CMO, who said that she could continue with the arrangement. Chief Superintendent Padraic Jones said that he met the complainant for the first time in August 2019. It was in the course of this conversation that the complainant spoke of her medical issues. He suggested attending roll out meetings regarding the roster. The complainant initially said she would go. The following day, the complainant said that she could not travel to meet him at a Division or HQ. She was specific about what she might do in the car, and this caused him specific concerns. He said that Garda Kenny said that if she was driving, she had a feeling that she was going to drive into vehicles coming towards her. Chief Superintendent Padraic Jones accepted that there may be Sergeants who are not frontline. Some based in Garda HQ are made available for operational duties for example at large events. He was not aware of the complainant’s involvement in the visits of President Obama and the Queen. He was asked whether being a Sergeant with a disability is not an impediment; he replied that this was a question for the CMO. Evidence of Chief Superintendent Dennis Ferry Chief Superintendent Dennis Ferry outlined that reasonable accommodation is based on the CMO’s advice and relates to hours of work and level of confrontation. Most accommodation involves no confrontational roles. The respondent relied fully on the CMO for advices. The respondent policy was dynamic and depended on the positions available. The respondent had 88 Sergeants who were frontline, grouped into two categories. Other Sergeants can do the full operational role, including attending court. The two categories where those on a Monday to Friday 9 to 5 roster and with no allowance and the second, on a 24/7 roster but in a non-confrontational role. The complainant was in the second category. When a candidate is considered for promotion, any restrictions are sent to the Commissioner. The complainant cannot attend work and both categories rely on members attending work. In respect of the next step, Chief Superintendent Dennis Ferry said that they sent updates to the Commissioner and there was continuous interaction. The Commissioner may confirm the appointment or await further information including from the CMO. They looked at the applications monthly. He said that around 200 were appointed not having gone through the second round in 2019. Other panels expired but the complainant’s panel has been extended and there is no end date. He said that the complainant had not made a transfer application and there is a D19 form. In cross-examination, Chief Superintendent Dennis Ferry accepted that this was a competition from 2017. He accepted that everyone else on the panel was promoted and there are four outstanding from that panel. The complainant may be the only one with ongoing restrictions. He said that the Commissioner could appoint on the basis of the restrictions. Chief Superintendent Dennis Ferry said that the complainant had been considered for the non-frontline Sergeant roles. The Commissioner was aware of her restrictions and was not aware of her science background. Both categories set out hours of work in the office and the restrictions of the complainant prevent this. There were 88 such roles and this increased to now 104. This is out of 2,200 sergeants. He said that in 2019, the Commissioner sought to increase the number of Sergeants appointed. The Commissioner could confirm an appointment or asked for further information. Chief Superintendent Dennis Ferry said that he cannot assign the complainant as a Sergeant but could do so if she was appointed. It was put to Chief Superintendent Dennis Ferry that a transfer to Corporate Services as a Sergeant was shut down; he replied that it would be unusual for someone to be asked about a certain role. The person still needed to apply as this is recorded in the bulletin. There must be approval for a post and a competition. There is also the issue of backfill of the post the person left. It was put to Chief Superintendent Dennis Ferry that the complainant is blocked as she is seen as unique. A decision had been made that she will not be promoted. Chief Superintendent Dennis Ferry replied that he could not pre-empt what the Commissioner will decide. The complainant is in a group in a process with three others and the panel is still active. Others with accommodation needs have been promoted. There is no reason why she has not been promoted and the panel is still live. Closing of the respondent The respondent outlined that this was a unique case. Section 26 of the Garda Síochána Act 2005 has paramount importance in assessing this discrimination claim. The Commissioner is accountable to the Minister in the exercise of this function. It was submitted that there was an ongoing process that has taken time because of the unique nature of the case. There had been nine medical assessments over a decade. This showed the respondent’s substantial engagement with providing accommodation and supports. The respondent held ‘grave concerns’ regarding the complainant’s psychological health and this must be factored in. The complainant was successful in being deemed eligible for promotion. The respondent rejects the claim of discrimination and points to the extensive evidence of engagement over a protracted period. There is a process now in train where the Commissioner is reviewing the situation and there may be further contact. The panel is a live panel. This is a challenging case because of the complainant’s ill health. The respondent is seeking to support the complainant and also act in accordance with section 26 of the 2005 Act. The respondent referred to Nano Nagle v Daly [2019] IESC 63 regarding what was ‘reasonable in all the circumstances’ having regard to the respondent’s ‘grave concerns’. It referred to paragraphs 104 to 105 regarding the ‘wise employer’ providing participation in deciding accommodation. The allegations of discrimination made are serious and entirely rejected. The limitations posed by the complainant’s inability to attend the workplace are matters of significant concern. The respondent stated that the ‘grave concerns’ were the 2019 conversation and reference in the CMO report of the 30th March 2023 to the ‘mental health symptoms that impair [the complainant] on a daily basis.’ |
Findings and Conclusions:
The complainant is a serving Garda who has an accommodation to work from home. This was confirmed by the respondent Chief Medical Officer in March 2023. This matter relates to the complainant’s promotion to the rank of Sergeant. She applied via a 2017 competition and in 2019, was deemed eligible for promotion. She went through the first two rounds of the competition and while she did not initially get through the third round, she and many others were later deemed eligible. To ensure that the force had sufficient Sergeants, the Commissioner decided that all candidates who made it to the third round would be deemed eligible for promotion. The complainant and about 200 others were in this category. The 2017 panel remains live. The respondent indicates that the complainant remains eligible for promotion and her application is under review. The complainant outlines that she is in limbo and the reason she has not been promoted is because of her disability. As redress, she asks that I order the respondent to sign the warrant of Sergeant. Section 26 of the Garda Síochána Act The respondent emphasised that the Garda Commissioner carries out the functions set out in section 26 of the Garda Síochána Act. The Commissioner is answerable to the Minister in the exercise of these functions. The relevant parts of the section for this case are: ‘(1) Subject to this Act and the regulations, the Garda Commissioner has the following functions: (a) to direct and control the Garda Síochána; (b) to carry on and manage and control generally the administration and business of the Garda Síochána, including by arranging for the recruitment, training and appointment of its members and civilian staff…’ The respondent did not submit that the principle of equal treatment did not apply in the exercise of any of these functions, including the appointment of Sergeants. Disability discrimination and reasonable accommodation Career advancement is prominent in the legal instruments that address disability discrimination and provide a duty to reasonably accommodate a person with a disability. Article 27 of the Convention on the Rights of Persons with Disabilities (CRPD) states: ‘Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions.’ Recital 17 of the Framework Equality Directive provides: ‘This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.’ Article 3(1)(a) of the Directive includes ‘promotion’ within the scope of the Directive: ‘conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion’. Section 8 of the Employment Equality Act provides that an employer shall not discriminate against an employee in respect of ‘promotion’ [8(1)(d)]. Section 8(8) provides: ‘(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds— (a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or (b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.’ Section 16 addresses reasonable accommodation and the duty of employers. Section 16(1) provides: ‘(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.’ Section 16(3) provides: ‘(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.’
Section 16(4) defines ‘appropriate measures’ as ‘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.’ Case law Discussing the interplay between the various provisions within section 16 and the duty of an employer, MacMenamim J. in Nano Nagle v Daly held ‘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.’ At paragraph 105, the Court considered the extent of the obligation to consult: ‘105. 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.’ In Cunningham v Irish Prison Service [2020] IEHC 282, Barr J., obiter, contrasted the duty to provide reasonable accommodation between a mountain rescue service with An Garda Síochána. At paragraph 69, Barr J. discussed the respondent in the following terms: ‘However, in a larger organisation there may not be a single characteristic function, which is essential should be performed by all employees so as to preserve the operational capacity of the particular emergency service. For example, in An Garda Síochána, most Gardaí would have to be able to chase and apprehend suspected criminals, intervene in situations of violence and carry out searches of buildings and other locations. A person in a wheelchair would not be able to perform these functions. However, if the Garda was employed in the Forensic Document Section, or in the Cyber Crime Section, he or she could probably be relatively easily accommodated if they had an accident and had to use a wheelchair, because their work is completely deskbound. In these circumstances, they could be accommodated in their use of the wheelchair, without in any way compromising the operational capacity of An Garda Síochána.’ Application of the law to the facts The starting point is to note the accommodation provided to the complainant. She was initially assigned to non-frontline posts, based in Garda stations. In 2019, the complainant had the further accommodation of working from home. She retains this accommodation as confirmed in March 2023. The other starting point is the impressive evidence of the complainant. She is obviously someone who has gone a long way to address and manage her health. She is careful about her mental and physical health, and wishes to progress in An Garda Síochána. She is conscientious and well-regarded by her colleagues. The complainant is engaged in important projects that will enhance the operational capacity of the respondent. She was previously engaged in the development of the Fixed Penalty Notice project, which will enhance the effectiveness of roads policing. She is latterly involved in the new Garda roster project, which will enhance the respondent’s operational capacity. August 2022 proposed transfer The complainant has support in senior management; she referred to two Assistant Commissioners in her evidence. She referred to the supportive correspondence from a Superintendent regarding her proposed transfer to Corporate Services to work on the Garda National Public Order Steering Group. No party to the email chain mentions the need to fill in a D19 and it is assumed that the move will take place. This transfer did not, in fact, take place. The complainant says that this was blocked by the respondent. I accept the complainant’s evidence that she has never filled in a D19 but has transferred between previous roles. March 2023 CMO referral The 30th March 2023 CMO report stated ‘A telephone consultation was carried out with Garda Jacinta Kenny on 27/03/2023 per your referral of 10/02/2023. Garda Kenny has physical and mental health symptoms that impair her on a daily basis. In relation to her physical complaints she is attending a treating Specialist for just over a year at this point. She is under the care of two further treating Specialists in relation to her constellation of physical symptoms. Garda Kenny is fit for non-confrontational duties. I consider that the accommodation of working from home allows her to sustain effectiveness albeit in a significantly reduced profile of policing work. I consider that she continues [to be] fit for her current fulltime work as presently current accommodations are likely in the intermediate term at least. Physically I consider it unlikely that she will be every sufficiently robust to progress to frontline Garda duties given her status. This should be kept under review at an interval of six to twelve months, as the interventions she has for her physical health improve the latter and this may have implications for her capacity for work. Overall it is considered unlikely that Garda Kenny would make such progress that she would be sufficient to progress to frontline policing duties, on balance of probabilities, and in the longer term.’ I interpret ‘profile of policing work’ in this assessment to equate to ‘frontline Garda duties’. It is clear that, other than these duties, the complainant is fit for non-confrontational duties and can sustain effectiveness with her current accommodation. The evidence was clear that the complainant is highly regarded and performing well in her role. The CMO referral does not discuss her promotion. I accept the complainant’s evidence that the Deputy CMO who carried out the assessment in March 2023 informed her that her eligibility for promotion was not a matter for him. 2019 conversation On the 7th June 2023, evidence was adduced of a conversation of August 2019 between the Chief Superintendent and the complainant. The complainant denies that the conversation took place as described. The contents of the conversation form part of the respondent’s ‘grave concerns’ regarding the promotion of the complainant. It is, therefore, a key aspect of this case. The Chief Superintendent’s account is that this was on the occasion of his first meeting with the complainant, who was working from home. They discussed whether she and he could travel to stations to introduce the new roster and its implications. His account is that the complainant expressed murder-suicide ideation (although he did not use these precise words), a feeling she had that she would drive into other people’s cars. The complainant’s account was completely different. She discussed a technique she used when driving to new places. She carefully mapped out the route to ensure that nothing caused her anxiety. She categorically denied ever feeling that she could cause harm to another. It is striking that the Chief Superintendent’s account forms part of the respondent’s assessment of whether the complainant should be promoted, when this has never been put to her. The first the complainant knew of this account was the 7th June 2023. It is incredulous that the respondent has not put this account down in writing at any stage. There is voluminous documentation in this case; letters, emails, CMO referrals and reports. At no stage has the Chief Superintendent’s account been reduced to writing. It is not credible that such a conversation could take place and not be reported via the appropriate channels. If it were true, what the complainant said constitutes a threat to the public. There is no doubt that it wouId have been acted upon. I find as fact that the account is not accurate. The complainant’s account of the conversation is correct. The complainant has regularly attended the respondent CMO service, and this involves liaising with the complainant’s treating doctors. There was never any suggestion in any referral of any such concern about the complainant. If the conversation had taken place as described by the respondent, it would have been immediately referred to the CMO or at least included in the 2019 referral. After all, this 2019 referral was instigated by the Chief Superintendent in respect of working from home. For completeness, I note that the 2018 CMO referral mentioned the mundane issue of parking the complainant could avail of at a named Garda station. This is the extent of consideration given to the complainant as a driver and there was never a single issue of concern about her driving or safety on the road. Substantive decision The complainant was one of a group of 200 deemed eligible for promotion in 2019. Almost everyone else was promoted, but the complainant was not. While the respondent has not said the complainant will not be promoted, she has not been promoted when others have. The respondent has referred the complainant to the CMO and includes in its grave concerns the complainant’s ‘mental health symptoms that impair [the complainant] on a daily basis.’ It follows that the complainant has established a prima facie case of discrimination by establishing facts of such significance that raise the inference of discrimination. This is the complainant not being promoted because of her mental health. I decide that the respondent has not rebutted the inference of discrimination because the CMO referrals do not comment at all on promotion. The respondent has not rebutted the inference of discrimination because of its reliance on an unsubstantiated account of a 2019 conversation. This account has never been documented or referred to the CMO. It was never put to the complainant. I find as fact that it did not take place as stated by the respondent. The respondent’s unsubstantiated account of the 2019 conversation effectively disabled the complainant’s application for promotion. The complainant not knowing of this account meant that she could not challenge it. The allegation was left hang in the air and impossible to address or refute. I accept the complainant’s evidence that she has moved roles without completing a D19. It is striking in the August 2022 email chain that no one refers to filling in the form, when they congratulate the complainant on the move to Corporate Services. I accept the complainant’s evidence that she was informed that there would be a Sergeant role once the Commissioner signed the warrant. I find that the complainant is subject to ongoing discrimination within the rubric of section 77(6A) of the Act. I note that the respondent has over 100 non-frontline Sergeant roles. This number is increasing. I note the complainant’s success in various roles across the respondent, and the great importance of those roles in enhancing operational capacity. I note that the complainant is likely to require the accommodation of working from home into the future. The CMO referral confirms that the complainant is fit to work, with the accommodation in place. It follows that the complainant has succeeded in the complaint of discrimination. I accept the kernel of her complaint that the respondent has sought to prevent her promotion to Sergeant because of the accommodation she has in place, which stems from her disabilities. Redress Having made the finding of discrimination, the next question is the appropriate redress at this juncture. An order of compensation is appropriate. I measure compensation that is effective, dissuasive and proportionate in this case as being €50,000. This takes account of the effects of discrimination, not being able to be promoted or transfer. It measures the effects of discrimination up to the adjudication of the complaint. I also make an order of equal treatment per section 82(1)(d): the respondent shall provide to the complainant equal treatment in its consideration of her promotion to Sergeant. Furthermore, I order the following course of action per section 82(1)(e): that the respondent provide to the complainant the materials he is relying on in the assessment of the complainant’s file for promotion and that the respondent provide to the complainant the reasons for any decision made in respect of her file. Such orders are fully in line with the approach set out by the Supreme Court in Nano Nagle and the duty of an employer in this regard. Of course, this is a live panel, and the complainant can refer further complaints to the Workplace Relations Commission should she believe that there is further discrimination or any act she believes constitutes victimisation. |
Decisions:
Section 79 of the Employment Equality Acts, 1998 – 2021 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00040838-001 I decide that the complainant has established a prima facie case of discrimination on grounds of disability, which the respondent has not rebutted. I order the respondent to pay to the complainant €50,000. I make an order of equal treatment per section 82(1)(d): the respondent shall provide to the complainant equal treatment in its consideration of her promotion to Sergeant. I order the following course of action per section 82(1)(e): that the respondent provide to the complainant the materials he is relying on in the assessment of the complainant’s file for promotion and that the respondent provide to the complainant the reasons for any decision made in respect of her file. CA-00040839-001 This is a duplicate complaint pursuant to the Employment Equality Act and I formally close the complaint. |
Dated: 21st June 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Employment Equality Act / disability / reasonable accommodation / promotion / order of equal treatment / order for a course of action |