Complainant

Respondent

Parties

Stephanie  Farnan

Co. Wexford Community Workshop (Enniscorthy) Clg

Representatives

Robert Jacob Jacob and Twomey Solicitors LLP

John A. Sinnott John A. Sinnott & Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00050716-001

19/05/2022

The complainant has submitted a claim of discrimination on grounds of disability and of failure to provide reasonable accommodation for a disability in respect fo access to employment.  The complainant in her complaint form outlined that she attended for interview with the Respondent in June 2021 for a role as a Community Support Worker/Care Assistant.  She was successful at interview and was placed 5th on a panel. 

The complainant’s application progressed until 22 December 2021 when she was advised that the respondent could no longer proceed with her application.   The complainant submits that the reasons for this were connected to her disability and that the respondent discriminated against her and failed to provide her with reasonable accommodation for her disability in respect of her her application for employment.

The complainant submits that

She attended for interview with the Respondent in June 2021 for a role as a Community Support Worker/Care Assistant.

In August 2019, the Complainant had suffered a stroke which left her quite somewhat incapacitated for a period of time. In May 2020, the Complainant was required to undergo a heart operation which meant that she was absent from work for a period of time. At the time, she was employed as a Multitask Worker within the HSE. However, following the various health issues which arose in 2019 -2020, she had no option but to seek an alternative role with reduced hours which prompted her to seek employment with the Respondent.

On or about 23 August 2019, the Complainant suffered a significant stroke. She was also required to undergo two heart operations in or around May 2020 and January 2022 respectively. The Complainant underwent her heart operation in May 2020, once month before she had commenced employment with the HSE. This resulted in her absence from work for various periods of time thereafter. In 2020, the Complainant also contracted Covid 19 which, left her suffering from Long Covid for a period of time thereafter with corresponding periods of absence from work as a result.

Due to the various medical complications endured by the Complainant, she was required to seek alternative employment from her then role as Multitask Attendant with the HSE.    On 20 April 2021, the Complainant applied for a position with the Respondent.

In her application form, she confirmed that: “Although I love my job in HSE, I became very ill 2 years ago and full-time work, alternating 6 weeks of days and 4 weeks nights is proving to be a lot to handle on my body. I’m well capable of the work but need for my child and my health to reduce hours and the HSE can’t provide that at the moment.”   

On or about 6 June 2021, the Complainant attended for interview with the Respondent. The Complainant confirmed at the said interview that: 1. She had suffered a stroke in 2019 which had meant that she had suffered double vision and required a walking cane for a period of time thereafter. 2. Following her stroke, she was required to undergo a heart operation in May 2020 with a second heart operation scheduled for January 2022. 3. In 2020, she had contracted Covid 19 which, unfortunately, had left her suffering with Long Covid.

Her role within the HSE at that time was within was within a high dependant of the HSE. At the time, the HSE were not in a position to offer her part time work. As a result, the Complainant had no option but to seek alternative employment. On 9 June 2021, the Respondent informed the Complainant that “you [sic] were appointable at interview and you have been placed on the panel. There was an exceptionally high calibre of candidates interviewed for this role and I can confirm that you have been placed 5th on the panel.” On 2 September 2021, the Complainant sent an email to the Respondent in which she enquired about the possibility of being placed on the full-time role panel. In addition, she confirmed that she was turning down other roles at the time in circumstances where she did not wish to miss out on any opportunities which might arise within the Respondent organisation.

On 3 September 2021, it was confirmed by the Respondent that the Complainant would be placed on the full-time panel. Later that day, the Complainant replied to confirm that the day service might suit her better due to chest complications she was experiencing from Long Covid. On 6 September 2021, the Complainant received an email from the Respondent which again confirmed that she had secured placement on a panel for employment. Furthermore, some three months after she attended at interview, she was informed that in order to progress her application, Garda Vetting clearances, a medical and references were required. The said email went onto state that the “this email is not an offer of employment”.   In those circumstances, it would seem that the requirement of a pre-employment medical was more akin to a medical screening process as opposed to an offer which was subject to completion of a satisfactory medical.   On 16 September 2021, it was confirmed by Medmark, that in light of the pre-employment questionnaire submitted by the Complainant that she was fit for work.

Furthermore, the Complainant attended at a number of training courses which included Fire Safety Training, Emergency First Aid Training. On 3 December 2021, the Respondent confirmed that: “Normally we would make candidates wait until the clearance was back but because you have the first cert, we can accept that and allow you start work as long as you send the new clearance once you receive it.”    For the sake of clarity, the clearance referenced in the email to the Complainant above was in relation to Police Clearance required from Australia for a period of time when the Complainant had worked there between 2011 – 2014.

On 7 January 2022, the Complainant was astonished to receive a letter which confirmed that the offer of employment was being withdrawn. The letter stated, in no uncertain terms, that the decision to withdraw her employment was connected to her absence from her previous employment.   On 14 January 2022, the Complainant wrote to Mr. John Dalton, HR Manager for the Respondent, seeking to appeal the decision to terminate her placement on the employment panel. In that context, the Complainant again confirmed that her absence from her employment with the HSE was due to her having suffered a stroke, undergone a heart operation and also having been diagnosed with Long Covid. Unfortunately, the Complainant heard no further from Mr. Dalton in relation to her appeal.

The respondent is County Wexford Community Workshop (Enniscorthy) CLG ("CWCWE") which was founded in 1975 to develop a work and support programme for adults with disabilities. The organisation provides pathways through support, training, and employment to enable people with disabilities to live fulfilling, and insofar as possible independent lifestyles. As of today, the respondents provided a range of specialised supports to 174 people, from those in early childhood right through to older age.

The complainant completed a recruitment application form in which, in the additional information part she described that she had health problems. The receipt of the application form was acknowledged by email on 24/05/2021, in which the complainant was invited to participate in an interview on 28/05/2021 with the HR Manager through MS Teams.

The complainant was interviewed by Denise Kinsella and John Dalton (HR manager) in June 2021 and on 9th June 2021 the complainant was notified that she was successful in her interview, and that she has been placed 5th on the panel and that the panel will remain active for 6 months. It should be noted that being present on the panel, does not promise or guarantee a job. The complainant enquired in July, August in September to see whether there were any recruitment opportunities, within the company, since she was placed on the panel. On 2nd September 2021 the complainant was notified that because she is 5th on the panel it could take some time before a role arises. The complainant then emphasised that she was available to take up, full time employment and on 6th September Ms. Irene Roche replied that she was going to send out Garda Vetting forms and other documentation required to progress her application. On 6th September 2021, the complainant received an email requesting additional documentation. This email specifically said that this is not an offer of employment, and that it is subject to satisfactory references, medical clearance. Police clearance and garda vetting. Contrary to what the complainant is saying, it was not an offer of employment.

On the same date, the complainant was sent a link to access e-learning training courses. The complainant suggests that she has notified the HR manager conducting the interview that she has serious health problems. There was no mention of her health problems, except for her absence due to Covid-19. Throughout all this time, the respondents were fully accommodating and were trying to assist the respondent in every way they could to progress the application. This is evident in all the correspondence between the complainant and the respondents, and in particular the note of the MS Teams meeting between the complainant and Shauna Buckley on 18/11/2021.

The respondents deny that anything about the complainant's stroke was ever mentioned at the interview.    The respondents were aware of the complainant becoming very ill 2 years ago, as this was mentioned in the recruitment application form, and yet the respondents proceeded with the application for the position as advertised, which resulted in the Complainants being successful on the panel (being 5th out of 6 people on the panel) despite the Complainant's allegation.

 The Medmark report dated 16 September 2021 clarified that the complainant does not fall into the very high-risk category for Covid-19.     On 22"a October 2021, the complainant authorised the respondents to contact her referees and stated that she has no way of contacting the agency who had provided her police clearance certificate from Australia, where she previously resided.

 On 28th October 2021 the respondents requested more documentation from the complainant but also notified the complainant that they were still awaiting HSE Land Training certificates and has still been unable to verify her police clearance certificate. The possible employment was still subject to satisfactory references and other supporting documentation.

On 4th November 2021, the respondents received a reference from the complainant's current employer which outlined that the complainant had "six episodes of sick leave since commencing with our service" which was on 29/06/2020. The reference goes on to say that "she is currently on sick leave since January 2021". This referee rated the complainant's attendance as "poor".   On the 17th of November 2021 the complainant was advised that they are currently reviewing the reference they received from the complainant's current employer and offered a meeting on 18th November to discuss this with her.

On the 18th of November 2021, the respondents met with the complainant to discuss the high level of absence that has been returned on her reference from Wexford Residential Intellectual Disability Service.    At no time at that meeting was the complainant's disability disclosed to the respondents. On Friday 26th November 2021 the complainant was again advised that the invitation to induction training was not to be considered a formal offer of employment and that a formal offer could be provided once all relevant documentation and vetting is considered complete by the organisation.

On 2nd December 2021 the respondent still had not received the complainant's Australian police certificate.   On Yd December 2021 the respondents were still waiting for verbal validation of the reference from Judith (from the Noel Group) who was on annual leave.

At no time was, the complainant offered a job within the organisation, and it had been emphasised to the complainant, on many occasions that her possible employment was subject to satisfactory references.

On 22 December 2021 the complainant was notified that they were no longer able to proceed with her application. The position at all times was subject to a satisfactory reference.

Please see attached a copy of the letter the complainant sent to the respondents, again the complainant is stating that she notified the respondents about having suffered a stroke in 2019. The respondents submit that they were only advised of this on 14/01/2022, after the complainant was advised that they can no longer go ahead with her application did she respond with that.

The respondent is an organisation which assist people with disabilities and also actively employs people with disabilities having over 26 people with disabilities employer or almost 12% of their workforce.

The role that the complainant applied for, being a daytime position, requires ensuring the physical and emotional well-being, as well as the personal hygiene, of people with intellectual disabilities as assigned by the Unit Team Leader. This role is very demanding, and attendance and timekeeping are extremely important.

The respondents are puzzled that the complainant is implying that she has been refused a job on the grounds of her disability, having suffered health problems in the past i.e., having suffered a stroke, because firstly, the respondents were not aware of it and secondly the employment was always subject to satisfactory reference, which were not received.

“Disability" is defined in section 2 of the Employment Equality Act 1998 as meaning:

 “(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person's body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

Discrimination

S.6 (1) of the Employment Equality Act 1998 provides the definition of discrimination.  The relevant element is “discrimination shall be taken to occur where…one person is treated less favourably than another is”. [emphasis added]. 

Reasonable Accommodation

Section 16 of the Act 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 - (b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed. ...

(3)(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as “appropriate measures”) being provided by the person’s employer. (b) The employer shall take appropriate measures where needed in a particular case to enable a person who has a disability - (i) to have access to employment, (ii) to participate or advance in employment, or (iii) to undergo training unless the measures would impose a disproportionate burden on the employer. (c) In determining whether the measures would impose such a burden account shall be taken, in particular, of - (i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3) - “appropriate measures” in relation to a person with a disability - (a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned, (b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, ...”

Further Legal precedent regarding Section 16(3) of the Acts, requires an Employer to have all reasonable medical information to make a proper and adequate assessment of the situation before taking a decision which is to the detriment of an employee with a disability – this approach was endorsed in Humphries v Westwood Fitness Club.  

In the case of A Health and Fitness Club -v- A Worker the Labour Court interpreted section 16 of the Employment Equality Acts as a process orientated approach which places an obligation upon an employer to embark upon a process of ascertaining the real implications for the employee's ability to do the job, taking appropriate expert advice, consulting with the employee concerned and considering with an open mind what special treatment or facilities could realistically overcome any obstacles to the employee doing the job for which s/he is otherwise competent and assessing the actual cost and practicality of providing that accommodation.

The Complainant advised the hearing that she suffered a stroke in 2019 which left her significantly incapacitated for a period of time.  She further advised that following this in May 2020, she was required to undergo a heart operation after which she contracted Covid and then Long Covid. This resulted in her absence on sick leave from her then role within the HSE at the time.

The Complainant, in her submissions asserted that she had in her application form and at interview, informed the Respondent that she had been seriously ill within the past two years and the dominant reason for her having to apply for the relevant post in the first instance was connected to her disabilities.

The complainant when questioned at the hearing as to whether she disclosed a disability at the interview replied, ‘I’m almost sure I mentioned it’.     The respondent advised the hearing that the complainant did not disclose any disability in her application form or at interview. The respondent referred to the interview notes and stated that these confirm that no mention was made of any disability.  The complainant agreed that the interview notes did not make a reference to a disability.

The complainant at the hearing while not definite about having disclosed her health issues at the interview stated that she had outlined all of her health issues in a November 2021 teams meeting which had been scheduled in order to allow her to explain her absence level in her previous employment she stated that she had fully disclosed all of her health issues at this meeting from when she had suffered a stroke and the resultant heart operation as well as Covid and Long Covid.    The respondents reply to this was that it was not in the record of the November 2021 meeting and that the only health issue mentioned in the meeting record was Covid and Long Covid.   The respondent acknowledges that the complainant advised them that she had suffered from covid and long covid in a Teams meeting on 18th November 2021.   In considering this matter I note that the purpose of the November meeting was to discuss the complainant’s reference from her previous employer which indicated that she had a high level of sick leave (306 Days).    Accordingly, I find it hard to accept that the complainant would have failed to fully disclose her condition at this point given that she was advancing this as a reason for her absence level in her previous employment. 

In addition, I note that the complainant in her application form had already stated that it was for health reasons she was leaving her previous employment and seeking new employment specifically stating

“Although I love my job in HSE, I became very ill 2 years ago and full-time work, alternating 6 weeks of days and 4 weeks nights is proving to be a lot to handle on my body. I’m well capable of the work but need for my child and my health to reduce hours and the HSE can’t provide that at the moment.”      

The complainant is submitting that she was refused access to employment due to a disability.    The disability advanced relates to her having had a stroke in August 2019 followed by a heart operation in March 2020 with a further heart operation required.  The complainant also submits that following this she contracted Covid and that she suffered from Long Covid.

Both parties agree that the complainant was successful at interview and placed on a panel.   The respondent advised that her application progressed through to garda vetting and reference stages but submits that she was at all times advised that no formal offer of employment had yet been made and that any offer was subject to garda vetting and suitable references.

The Respondent advised the hearing that they subsequently sought a reference from the complainant’s previous employer in relation to the Complainant.   This reference advised that the Complainant had been absent from her employment for the previous 306 days and still remained on sick leave from that employment.

The complainant submits s that any reasonable enquiry would have confirmed that the reasons for her absence were connected to her disabilities at the time and submits that the Respondent without any consideration of the Complainant’s situation, simply made an immediate decision to terminate the Complainant’s placement on the employment panel.

The Complainant notes that in Humphries v Westwood Fitness Club, [2004] ELR 296, the Labour Court found that in cases involving disability an employer is obliged to:

 • Examine the factual position and seek clear medical guidance regarding the employee's capability including the degree of impairment arising from the disability and its likely duration; and • Consider what, reasonable accommodation or appropriate measures (including any special treatment or facilities) can be made available by which the employee may become fully competent to perform his or her role; and; • Consult with the employee along the way to ensure that the employee has a say in any decisions which could adversely impact their terms and conditions of employment or which could lead to the termination of employment; • Document the entire process so that it is clear what has been examined and considered by the employer and what the response of the employee is before any decision is made regarding the employee.

In the instant matter, the Respondent does not appear to have taken any of these steps before taking the decision to terminate her job application.

The Employment Equality Act 1998 (as amended) addresses the issue of the burden of proof as follows: “85A. (1) 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.”

It is clear from the evidence adduced that he Complainant in the present case in the two years prior to her having applied for a role with the Respondent, experienced a number of serious medical complications. This included a serious stroke, a heart operation and Long Covid.   It is submitted that the Complainant’s conditions are disabilities within the meaning of the Employment Equality Acts. 

The Complainant submits that she informed the Respondent of her disabilities at interview and also in a subsequent teams call with the respondent HR Administrator on 18 November 2021.

This meeting was arranged specifically to discuss the complainant’s absence levels from her previous employment.   The record of the meeting shows that the complainant attributed her absence levels to long covid.   The complainant during this meeting was advised that attendance was important in the role and that she might fail her probation if she was regularly absent from work.   Following this meeting the complainant was advised that her application was being terminated and making specific reference to her absence levels in her previous job.  

I note that the complainant was sent this letter on 22nd December and was given until 4th of January to appeal the decision.   The complainant at the hearing made the point and I accept it, that she did not receive the letter until January due to Christmas Bank Holidays and postal delays.   The complainant advised the hearing that she had spoken to the respondent on the phone in early January and had requested and was granted an extension to the time period for appeal.  The complainant advised the hearing that she wrote to the respondent on 14th of January outlining in detail the reasons for her absence in her previous employment stating that she had suffered a stroke in 2020 which had left her blind in 1 eye for some time and walking with a cane.   She also stated that she had following the stroke had to undergo two heart operations one in May 2020 and a second one which was scheduled for January 2022 which had not yet taken place.   In addition, the complainant in this letter again stated that that she had contracted covid in 2021 and had suffered long covid afterwards. 

The complainant in explaining this referred back to her job application form in which she had stated that she had health issues in the previous 2 years and was unable to attend work during this time.

The complainant advised the hearing that she received no response to this letter of appeal.  She went on to state that she heard nothing back form Mr. D and that she had phoned and emailed on numerous occasions and had received no reply. 

The complainant stated that she felt it was unfair that she was being penalised for having been absent from work in her previous employment due to a disability and so she had eventually taken the decision to contact a solicitor regarding the matter.  The respondent finally replied to her on the 24th of March 2022 offering her a date for a meeting at which point the complainant refused as she stated she had at that point been ignored for a period of 10 weeks having appealed the decision to terminate her application but received no reply to her appeal.    The respondent at the hearing acknowledged that there had been a number of emails received from the complainant in the intervening period and that these emails and her appeal of the 24th of January had gone unanswered until the 24th of March email offering her a meeting.

The Respondent, at the hearing in stating the reasons for terminating the Complainant’s application which was at an advanced stage in the recruitment process, confirmed that it was connected to her previous absence in her role with the HSE.     I note that the reason provided for such absence was clearly connected to a disability. 

I note the respondent’s assertion that it had only become aware that the complainant suffered a disability after a decision was made to terminate her application.  The respondent was referring specifically to the email of 14th of January 2022 in which the complainant set out the details of her stroke and the aftereffects of same as well as details of the necessary heart operations she was required to undergo as a consequence.    The respondent at the hearing denied that the complainant had disclosed these matters in the November teams meeting stating that the record of that meeting only states that the complainant had advised that the reason for her absence was due to Long Covid.

The Respondent, at the hearing in stating the reasons for terminating the Complainant’s application which was at an advanced stage in the recruitment process, confirmed that it was connected to her previous absence in her role with the HSE.     I note that the reason provided for such absence was clearly connected to a disability.   I also note the respondents advise to the complainant in the teams meeting of November 2021 which was that she could run the of failing her probation of her attendance levels were not acceptable.  

Even if I were to accept the respondent position that they only became aware of a disability in January 2022 and then taking the respondents defence at its very height and if they had only become aware of the existence of a disability on the 14th of January 2022 via the complainant’s appeal letter, there was still time to reconsider and the appeal was the opportunity for the respondent to now consider this additional information which was being advanced as reason for the complainants excessive sick leave in her previous job.    This appeal was the opportunity for the respondent to revisit its decision and to make further enquiries in accordance with Westwood before taking a decision to the detriment of the complainant.

The respondent at this stage could and should have made enquiries into the complainant’s condition and her fitness to undertake the employment.

While I note the respondent’s assertion that the offer of employment was always contingent on references, I also note that the respondent once it became aware of the complainants health issues immediately terminated her application without any investigation into the reasons for the absence or without any enquiry into whether or not she would be capable of doing the job she had applied for or if any reasonable accommodations would be required to enable her to do the job.

This flies in the face of the findings in Humphries v Westwood Fitness Club.

 The Complainant sought to appeal the Respondent’s decision to remove her from the panel in January 2022.  It was submitted that the Respondent ignored the Complainant’s attempt to appeal the decision and did not issue her with any response for a period of 10 weeks.  It is submitted that the reason for this is that the respondent was hoping that she would just go away.  

It is submitted that The Respondent, discriminated against the Complainant on the grounds of her disability by denying her access to employment for reasons which were clearly connected to her disabilities.

The respondent at this point should have made further enquiries before taking the decision to terminate the complainant’s application.   The respondent was on notice that the complainants sick leave levels in her previous employment were connected to a disability and before taking the decision to terminate her application could have engaged with the complainants and referred her for medical assessment to ascertain the extent of her disability and the implications If any on her ability to do the job or whether any special measures would be needed to enable her to do the job.  

I also note that the complainant from the very start of the process made it known that she was no longer able for the demands of her previous job and so the fact of her having been absent on sick leave from that job should not have come as a surprise.   

Accordingly, I am satisfied from the totality of the evidence adduced that the complainant was discriminated against by the respondent in relation to her application for employment when the respondent failed to provide her with reasonable accommodation for a disability.    Having considered all of the evidence and the circumstances of this case I award the complainant €8,000 in compensation.  

I am satisfied from the totality of the evidence adduced that the complainant was discriminated against by the respondent in relation to her application for employment when the respondent failed to provide her with reasonable accommodation for a disability.    Having considered all of the evidence and the circumstances of this case I award the complainant €8,000 in compensation.