Complainant

Respondent

Parties

Support Worker

Education Service

Representatives

Barry Crushell Crushell & Co

Catherine McVeigh BL Niamh Diskin Eversheds Sutherland

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-00045469-001

30/07/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045469-002

30/07/2021

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

CA-00045469-003

30/07/2021

The Complainant suffers from Addison’s disease, and it is alleged that arising from an office reorganisation she was required to relocate to a different office. However, she stated that her employer, who was on notice that she had a disability, failed to engage with her about an appropriate location based on her disability and need to be near a hospital. That allegation is denied, and the employer stated that all reasonable steps were made to engage with her; however, she would not provide very basic information when requested to do, so that a decision could be made to determine how best she could be reasonably accommodated. Any negative consequence arising was solely linked to the Complainant’s failure to provide very basic information about where she wished to relocate to.

The second complaint related to an alleged discriminatory practice about sick pay and that the Complainant was treated less favourably to others with a different disability or no disability. That allegation is denied and that she in fact was treated flexibly and no less favourably than others with or without a disability regarding the benefits under the sick pay plan.

The following is copied from the Complainant’s form to accurately reflect what is being claimed.

In summary, the Complainant contends that the Respondent had failed to recognise that she was suffering from a disability, that the failure of the Respondent to recognise the Complainant as suffering from a disability in conformity with the requirements of the Act has resulted in a significant degree of stress, anxiety and humiliation, that the failure of the Respondent to recognise the Complainant as suffering from a disability has resulted in financial loss for the Complainant in that she has been excluded from the Respondent’s own sick pay schemes, that the Respondent failed to provide the Complainant with any reasonable accommodation with respect to her place of work or working terms and conditions, cognisant of her disability, and that the Complainant, as a result of the actions and inactions of the Respondent, has been compelled to seek early retirement on medical grounds some seven years prior to her originally envisaged retirement date.

The following is an edited summary of the Respondent’s denial that the Complainant was discriminated against on the ground of disability regarding the benefits she received under the Sick Pay Plan and relating to being discriminated against by not being reasonably accommodated.

Terms and Conditions-Sick Pay Plan:

The Complainant received all her entitled benefits under the plan as follows:

i.       Absence from Tuesday 6 April 2021 to Friday 23 April 2021-this period was not pay impacted.

ii.      Absence on Friday 4 June 2021: 1 working day.  This period was not pay impacted.  There was no impact to the Complainant’s pay.

iii.     Absence from Monday 28 June 2021 to Friday 16 July 2021 This period was subsequently recalculated under CIP.  Full pay was awarded to the Complainant.

 As per the above, out of the three absences in the cognisable period, absence (i) and (ii) were never pay affected. As regards the third absence this was recalculated, and CIP (Critical Illness Plan) was awarded to the Complainant with full pay for this period.

Reasonable Accommodation

At no point in any correspondence with any of the agents in the Respondent's HR or with Fórsa did the Complainant

(i)               allege that she had a disability,

(ii)              confirmed to the Respondent that she required accommodations as regards her disability,

(iii)             requested any accommodations whatsoever as regards her disability and the said office move, or

(iv)            set out reasons why a certain office in the three options provided to her would constitute reasonable accommodation.

“Certainly, at no time during the correspondence from February 2020 to June 2021, over 16 months in total, the Complainant at no point referred to the fact that she needed to be beside a hospital for an alleged disability. The Complainant refused to outline her preference as regards an office transfer and in November 2020 when she finally stated, nine months after the commencement of this process and after multiple requests from the Respondent for her preference that her preference was the Naas office. The Complainant in this correspondence stated that she would, however, be amenable to a move to the Carlow office on certain strict conditions. After nine months of correspondence this option of the Naas office was not viable as it had already been offered to another employee.”

The cognisable period for both complaints initiated by the Complainant is 30 January 2021 to 30 July 2021. The Complainant cannot establish a prima facie case that the Respondent discriminated against her on grounds of her disability either with respect to the Respondent’s duties to provide reasonable accommodation or in relation to the Complainant’s terms and conditions of employment.”

Prima Facie Test

In Mitchell v Southern Health Board, DEEO11 the Labour Court held that a ‘claimant must prove, on the balance of probabilities, the primary facts on which to rely in seeking to raise a presumption of unlawful discrimination.’  And in McCarthy v Cork City Council EDA0821 ‘that at the initial stage the complainant is merely seeking to establish a prima facie case. Hence it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’

I note that in Murdoch and Hunt 2021 Edition Bloomsbury Prima Facie is defined as:

[Of first appearance]. On the face of it; a first impression. A prima facie case is one in which there is sufficient evidence in support of a party’s charge or allegation to call for an answer from his opponent. If a prima facie case has not been made out, the opponent may, without calling any evidence himself, submit that there is no case to answer, whereupon the case may be dismissed.

The principle in discrimination litigation is that once a claimant establishes a prima facie case of discrimination the onus shifts to the respondent, who must prove that no discrimination has occurred.

And the Court of Appeal England and Wales in Igen v Wong EWCA/Civ/2005 stated that the claimant has to ‘prove on the balance of probabilities facts from which the tribunal could conclude,[this does not mean must prove on the balance of probabilities] in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant.’

It is also the case that the Labour Court in Melbury Developments Ltd v Valpeters EDA 1728 has held that membership of a protected group and evidence of adverse treatment is not sufficient to shift the burden of proof in a direct discrimination case, there must be a causal link between the ground and treatment. However, a difference in treatment can meet this test, In Brunnhofer, for instance, the CJEU held that where a female worker proves that the pay she receives from her employer is less than that of a male colleague and that they both perform the same work or work of equal value, she is prima facie the victim of discrimination.28 (the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings,Judgment of 26 June 2001, Susanna Brunnhofer v Bank der österreichischen Postsparkassse AG, C-381/99, para. 58)

At section 16(3) of the Employment Equality Act 1998 as amended (The Act) it states:

(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;

“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body.

At the hearing the Complainant accepted that the Respondent had a disability. In any event the evidence does show that the Employer was on notice that the Complainant had a disability by virtue of her application for sick benefit and having regard to the requirement to accommodate her to work remotely during Covid arising from her particular disability.

The Complainant stated that she was treated less favourably than another comparator who had no disability or a different disability in how she was treated and received sick pay entitlements. The Respondent strongly contested that in fact any relevant comparator had been identified. However, it is also clear from the Act that it is possible having regard to the right circumstances to identify a hypothetical comparator. The decision of the Labour Court in Togher Developments v Edgars Grods EDA 105 was considered with reference to hypothetical comparators. It was found that the complainant had failed to adduce evidence that a hypothetical comparator would have been treated differently in similar circumstances. The complaint was rejected. I note in the European Equality Law Review 2019/2 The Burden of Proof in Anti-Discrimination Proceedings, A focus on Belgium, France and Ireland by Julie Ringheim that:

The definition of direct discrimination allows for the use of a hypothetical comparator. Courts have also accepted that a presumption of discrimination can be inferred from other types of facts that raise the suspicion that the adverse treatment was determined by a prohibited ground. Thus, Irish courts have recognised in some cases that this causal link could be inferred from the fact that the respondent’s conduct diverged from standard practice in relation to the service in question. (seeMelbury)

In Regan Employment Law 2nd Ed chapter 17, the use of a hypothetical comparator is referenced:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

TERMS and CONDITIONS:

The Complainant has not presented facts that establish a Prima Facie Case of discrimination relating to how the Sick Pay scheme was operated. The evidence of the HR Officer given at the hearing is credible that any delay once identified was corrected. The Complainant did receive her benefit as per the policy during the cognisable period. While the Complainant has a disability (even when compared to a hypothetical comparator, and in this complaint a direct comparator would be required and that has not been met) she has not shown that in fact she was treated less favourably than others who are covered under the scheme. She suffered no detriment as she in fact received her payments as set out under the plan. Where a delay did take place, the benefit she was entitled to was paid. The Complainant has not shown that a causal linked existed between this delay and her disability. As she has not established a prima facie case of discrimination, I determine that she was not discriminated against on the ground of disability in how the sick pay scheme was applied to her during the cognisable period.

REASONABLE ACCOMMODATION:

It is accepted that the Complainant has a disability.

The Respondent’s case is that they never knew that the Complainant wanted to be reasonably accommodated based on her disability.

The Complainant stated that on or about February 2020 she heard informally that the Blessington Office would be closing under a reorganisation of office locations. Soon after she contacted the HR Officer who told her that she had three options of a new office: move to Carlow, Nass, or Tallaght. She stated she knew immediately that Carlow was not suitable as it was an hour and half away from her hospital in Dublin. The Complainant has Addison’s disease and an Addisonian crisis can create a life-threatening risk. There is no hospital in Carlow town.

The Complainant asked the HR Officer where there was room for her. According to the Complainant this request was never answered. The Complainant stated that she could go to Carlow on the condition that that she could hot desk from Nass. She stated that no such assurance would be given to her.

The Complainant stated that she in her email dated 25th of May 2020 she had informed HR that she was not in good health.

In an email dated the 23rd of October 2020 the HR Officer stated in the absence of a preference regarding where the Complainant would like to be relocated to, she would be assigned to Carlow. The email also stated that this was a HR decision that was now made and would hold unless changed in writing by HR.

In an email dated the 16th of February 2021 the Complainant wrote to HR:

Dear,

Would you please inform me on what basis the decision was made to move me to the Carlow office when this is not the option I chose as it did not suit either my personal or professional situation.  As you know, I live in Wicklow and my case load is in Wicklow and your decision to move me to another county will place unreasonable pressure on me.

The position of the HR Officer was as stated several months earlier; that the Complainant must state her preference as between the offices in her area or any office she wished to be considered for as a new location. As she had not done that she was assigned to Carlow.

There is no specific reference to a requirement to be near a hospital in the exchange of correspondence; however, can it be concluded that the Complainant’s reference to her personal circumstances related to her illness?

 On the facts of this case where there is a long exchange of email to the HR Office about Critical Illness Cover, based on the balance of probabilities test, I must conclude it does. Therefore, I read the email of the 16th of February 2021 as a request to explain why she was not being reasonably accommodated to relocate to the Naas Office as Carlow was not suitable because of her disability.

On the evidence I must conclude that the Respondent was on notice of the Complainant’s request to be reasonably accommodated because of her disability. When she referenced her personal circumstances, this meant her debilitating condition and where location is important so that she can participate in the workforce. On the evidence and the facts, the employer knew that she had several medical conditions that were serious and had incapacitated her for significant periods of time. It could not be credibly argued that her personal circumstances were not known to her employer. The factual matrix is important in considering if the employer was on notice of her condition and when they decided to close her office and relocate her, was it reasonable to interpret her emails and exchanges as referring to her personal circumstances as to where she lived or to her disability. I have concluded it is not reasonable to conclude that reference to her personal circumstances related to her habitual residence and must have referred to her disability. The Labour Court in Swan O’Sullivan Accountants & Registered Auditors and Seamus Counihan that concerned discrimination on the ground of disability referred to the High Court judgment in Somers -v- W (1979) IR 94 in which Henchy J stated:

“When the facts at his command beckoned him to look and enquire further, and he refrained from doing so, equity will fix him with constructive notice of what he should have ascertained if he had pursued the further investigation which a person with reasonable care and skill would have felt proper to make in the circumstances.”

In this case the Respondent knew that the Complainant had a disability and the facts of this case beckoned the employer to look and enquire further.

It is not necessary to identify an actual comparator in this case as the matter complained of related to reasonable accommodation about an office location because of her critical illness and disability when compared to someone working in the Organisation who does not have a disability.

The Complainant has a disability and on the facts of this case her employer has failed to reasonably engage with her about her personal circumstances. And those personal circumstances meant her chronic ill health and where she could be relocated based on a reasonable accommodation so that she could continue to participate in the workforce. The Blessington office had allowed her to participate in the workforce. That did not mean the employer would have had to keep that office open. The Complainant was willing to move to Naas and hot desk.

I note that in Nano Nagle School v Daly [2019] IESC 63 in McMenamin’s J judgement he stated:

29. Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 CRPD, reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’

The Respondent has stated, and evidence provided by the HR Officer that at no point in any of the correspondence with any of the Respondent’s agents or with her Union official represented:

·        she had a disability

·        confirmed to the Respondent that she required accommodation as regards her disability

·        requested any accommodation whatsoever as regards her disability and the said office move, or

·        set out the reasons why a certain office in the three options provided to her would constitute reasonable accommodation

However, the fact is the Employer was on notice of her disability and that it was a very debilitating and a serious illness. The Respondent at the hearing accepted that the Complainant had a disability.

The Respondent is also correct to state that at no time during the extensive exchange of correspondence between the HR Officer and the Complainant did she ever explicitly state that she required to be near a hospital because of her disability. However, the personal circumstances of the Complainant were well known to the HR Officer and the Respondent. The Complainant clearly did not use the technical language of the statute; however, she is not required to do so. On the facts what I am asked to determine was the Complainant asking her employer to be facilitated to a particular office arising from her personal circumstances which meant her disability and that the Carlow office that she would be assigned to was not suitable because of her disability.

The facts of this case support this conclusion. That does not mean that the Carlow Office in fact was unsuitable; however, what was required was for the Respondent to assess where the Complainant could be reasonably accommodated so that she could have access, participate and advance in her employment.

I note that at paragraph 81 of Nano Nagle McMenamin J stated:

81. In the Court of Appeal, Ryan P. strongly criticised the Labour Court’s conclusion that there could be a “free standing” obligation on an employer to carry out an evaluation of all the available options, irrespective of the fundamental question of whether the employee is actually capable of doing the job. He held there was a duty on the Labour Court to answer this fundamental question in the context of the facts of the case as adduced in evidence, not as what he termed “an abstract proposition”. As this judgment seeks to explain later, put in this way, the criticism has some force. This is a case brought under s.16 of the Act. The purpose of the Act is to promote equality between employed persons, and to remove discrimination connected with employment. An obligation is not free-standing, and failure of compliance will not, in itself, give rise to a right to compensation. The effect of a “failure in that obligation” must be considered within the framework of s.16 of the Act seen as a whole. Insofar as the appellant’s case might suggest there is a free-standing obligation in this situation, I must reject that proposition as a matter of law. I expand on my reasons later

Therefore, there is no freestanding obligation to look at all options. However, in this case the matter is very focused and clear that according to the Complainant that Carlow is not appropriate arising from her personal circumstances arising from her disability and another location should be considered and an assessment made having regard to her disability.

The failure to comply with the Act in of itself does not give rise to a right to compensation.

The test to be applied by a tribunal is set out at paragraphs 89 and 90 of the Judgement:

Limitation

89. The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to redesignate 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.

90. But I am forced to agree with counsel for the appellant: he is correct in saying the Court of Appeal “read-in” words and intent to s.16, which are simply not to be found there. Thus, when Ryan P. observed that the fundamental proviso in s.16(1) “must be respected …” (para. 54), this was, to my mind, to misunderstand the section. Neither the Act, nor the Directive, (were it necessary to refer to it), requires full competence, seen in isolation. Ryan P. was of the view that s.16 required that there be full competence as to the tasks that are the essence of the position, otherwise subsection (1) [of s.16], is rendered ineffective. I differ from this view: to the contrary, full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures.”

The minimum requirement in this case was to assess the needs of the Complainant having regard to her disability and how those needs could be reasonably accommodated based on what is reasonable and proportionate regarding the location of her new place of work against the backdrop of her office closing. The Employer had an obligation to make that assessment and did not.

The Complainant clearly did not use the technical language of the statute; however, she is not required to do so. On the facts what I am asked to determine was the Complainant asking her employer to be reasonably accommodated and facilitated to a particular office arising from her personal circumstances which meant her disability. That does not mean that the Carlow Office in fact was unsuitable; however, what was required was for the Respondent to assess where the Complainant could be reasonably accommodated so that she could have access, participate and advance in her employment. The Employer pleads ignorance of this request; however, having regard to the factual matrix of a long exchange and her complaints about how sick pay benefits under the relevant plan were denied to her; it cannot be credibly maintained that they did not know about her chronic disability.

In this case the Complainant has established facts that show that her employer failed to assess how she could participate in employment because her office was closing and that where she would be relocated was important because of her chronic condition. On the facts I must determine that the Complainant was discriminated against on the ground of disability by their failure to assess if they could reasonably accommodate her request to work in another office arising from her disability.

On the facts the Complainant was discriminated against on the ground of disability by treating the Complainant less favourably than a person with no disability or a different disability by their failure to assess how Respondent could reasonably be accommodated to another new location as her office was closing.

The Complainant has resigned from her employment; however, she has not made out a detailed case about the effects of the discrimination other than to say she had to resign because of the discrimination. The Complainant was on €67,000 per year.  The Act provides for compensation having regard to the effects of discrimination. I determine that the act of discrimination influenced the Complainant’s decision to retire earlier than she would have and having regard to all the circumstances of this case determine that 6 months compensation as appropriate. While the Complainant has maintained that she was left with no other choice but to leave, the complaint before me is a failure to provide reasonable accommodation and not constructive dismissal. I find on the facts and the case made out that the Employer should pay compensation amounting to €33,500. I determine that this quantum of award based on the evidence presented to be an effective and proportionate award.  

CA-00045469-001 Reasonable Accommodation:

The Complainant clearly did not use the technical language of the statute; however, she is not required to do so. On the facts what I am asked to determine was the Complainant asking her employer to be facilitated to a particular office arising from her personal circumstances which meant her disability and also that the office that she would be assigned to was not suitable because of her disability. The facts of this case support this conclusion. That does not mean that the Carlow Office in fact was unsuitable; however, what was required was for the Respondent to assess where the Complainant could be reasonably accommodated so that she could have access, participate and advance in her employment.

In this case the Complainant has established facts that show that her employer failed to assess if she could be reasonably accommodated so that she could participate in employment because her office was closing and that where she would be relocated was important because of her chronic condition. The Respondent failed to conduct the assessment, when they knew she had a chronic disability, where she stated that Carlow was not suitable because of her personal circumstances and the employer was on constructive notice that meant her disability. The Complainant has made out a prima facie case of discrimination that she was being denied access to employment and treated less favourably to someone with no disability arising from the failure of the Employer to conduct an assessment. The employer was not bound to accommodate a particular preference of the Complainant. However, it was obligated to assess if they could reasonably accommodate her request. That prima facie case was not rebutted by the Employer. On these facts I determine that she was discriminated against on the ground of disability.

The Complainant has resigned from her employment; however, she has not made out a detailed case about the effects of the discrimination other than to say she had to resign because of the discrimination. The Complainant was on €67,000.  The Act provides for compensation having regard to the effects of discrimination. I determine that the act of discrimination influenced the Complainant to retire earlier than she would have and having regard to all the circumstances of this case determine that 6 months compensation to be an effective and proportionate award. I determine that the Employer should pay compensation amounting to €33,500.

CA-00045469-002 Payment of Wages:

This Complaint was withdrawn.

CA-00045469-003 Discrimination Terms and Conditions:

The Complainant has not presented facts that established a Prima Facie Case of discrimination relating to how the Sick Pay scheme was administrated. The evidence of the HR Officer is credible that any delay once identified was corrected. The Complainant did receive her benefit as per the policy during the cognisable period. While the Complainant has a disability, she has not established a prima facie case of discrimination, I determine that she was not discriminated against on the ground of disability in how the sick pay scheme was applied to her during the cognisable period.

Reasonable Accommodation-Constructive Notice-Hypothetical Comparator